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AMERICAN  FEDERAL  STATE 

A  TEXT-BOOK  IN  CIVICS 

FOR 

HIGH  SCHOOLS  AND  ACADEMIES 

BY 


ROSCOE   LEWIS   ASHLEY,  A.M. 


Nftn  gork 
THE   MACMILLAN   COMPANY 

LONDON:  MACMILLAN  AND  CO.,  LTO. 
1902 

All  rigkU  rtttrvtd 


CoPYRIGHt,    190a, 

Bv  THE  MACMILLAN  COMPANY. 


KoriDoot)  $reB8 
J.  8.  Ciuhing  ft  Co.  -  Berwick  ft  Smtth 
C  '  ,  Norwood  Hail.  U  .S.A . 


PREFACE 

This  Civics  text-book  is  intended  not  only  to  describe 
the  organization  and  work  of  the  different  American  govern- 
ments, but  to  make  prominent  the  relation  of  the  citizens 
to  the  governments  and  to  each  other.  It  has  been  thought 
that  this  could  be  done  best  by  considering  the  subject  from 
the  standpoint  of  the  State :  that  is,  of  the  whole  body  of 
citizens  considered  as  an  organized  unit  rather  than  from 
the  point  of  view  of  government  or  of  the  individual  citizen. 
This  made  it  necessary,  first,  to  explain  some  of  the  more 
important  principles  of  political  science  with  practical  appli- 
cations ;  second,  to  show  how  the  American  Federal  State 
became  what  it  is;  third,  to  describe  the  national,  state 
(commonwealth),  and  local  governments;  and,  fourth,  to 
give  some  idea  of  the  policies  of  the  State  in  regard  to  great 
public  questions  and  of  the  problems  that  confront  it. 

In  the  historical  portions  of  the  book  no  attempt  has 
been  made  to  touch  upon  more  than  the  salient  events, 
each  of  which  is  considered  not  so  much  for  any  intrinsic 
worth  as  for  the  light  that  it  may  throw  upon  the  develop- 
ment of  nationality  within  the  United  States.  For  details 
and  for  subjects  omitted  altogether,  the  reader  must  be 
referred  to  the  many  excellent  manuals  of  American  His- 
tory. The  discussions  upon  government  assume  that  the 
student  needs  a  clear  conception  of  the  real  character  and 
actual  working  of  our  governments  much  more  than  he 
does  a  knowledge  of  the  government  as  it  is  supposed  to 
be.  Technical  descriptions  of  governmental  machinery 
have,  therefore,  been  subordinated  to  practical  accounts  of 
what  the  governments  do  and  how  they  do  it ;  and,  for  the 


vi  Preface 

same  reason,  the  methods  of  administration  have  been  given 
less  space  than  the  purposes  which  administrative  measures 
have  sought  to  attain.  Where  recognized  defects  exist  which 
can  and  ought  to  be  remedied  through  an  awakened  public 
interest,  the  author  has  not  hesitated  to  call  attention  to 
them,  noting  the  nature  of  the  flaw,  and  mentioning  ways 
in  which  it  may  be  removed. 

Although  no  references  have  been  given  in  the  form  of 
footnotes,  the  author  desires  to  express  his  obligation  to  a 
long  list  of  writers,  to  whom  he  is  indebted  for  suggestions 
or  material.  For  the  comments  upon  different  books  placed 
under  "  general  references  "  at  the  beginning  of  each  chap- 
ter, he  assumes  sole  responsibility ;  the  comments,  however, 
are  to  be  taken,  not  as  indicating  his  estimate  of  the  value 
of  the  books,  but  as  showing  the  usefulness  of  the  selections 
in  connection  with  the  succeeding  chapter. 

The  author's  thanks  are  especially  due  to  Dr.  Robert  H. 
Whitten,  of  the  New  York  State  Library,  and  to  Mr.  Burt  O. 
Kinney,  Head  of  the  History  Department  of  the  Los  Angeles 
High  School,  for  reading  portions  of  the  manuscript  or 
proof. 


SUGGESTIONS 


MATERIALS 

As  this  manual  covers  so  much  more  ground  than  the  Chapters  de- 
conventional  civics  text-book,  and  in  consequence  contains  ^p^J-^^P*- 
more  material  than  some  teachers  desire  or  are  able  to  use,  government, 
many  may  prefer  to  confine  themselves  as  far  as  possible  to 
the  chapters  devoted  especially  to  government.     To  such 
teachers,  and  those  who,  because  the  time  allotted  to  Civics 
is  less  than  one  year,  must  omit  parts  of  the  book,  the 
author  would  suggest  that  chapters  I  to  V  inclusive  be  fol- 
lowed directly  by  Part  II  and  chapters  XXII  and  XXIII. 
It  may  also  be  advisable  for  a  few  teachers  to  omit  the  more 
difficult  sections  within  these  chapters,  although  the  value 
of  general  or  theoretical  discussions  before  classes  take  up 
the  study  of  a  subject  in  detail  is  not  to  be  lightly  estimated 
if  time  is  not  too  limited  or  the  pupils  too  immature. 

The  use  of  materials  for  work  outside  of  the  text-book  Comparative 
has  fortunately  become  much  more  general  than  a  few  years  scarcity  of 
since ;  but  it  is  probably  true  that  there  has  been  less  prog-  civics, 
ress  in  this  particular  in  civics  than  in  American  history. 
Less  attention  has  been  paid  to  collecting  documents  and 
sources  which  would  throw  light  upon  American  government 
to-day  than  has  been  devoted  to  placing  in  compact  form  a 
few  of  the  most  useful  original  sources  of  history.    There 
are,  nevertheless,  a  great  many  papers  and  pamphlets  ob- 
tained at  slight  cost  which  afford  ample  opportunities  to 
study  certain  phases  of  the  organization  or  work  of  govern- 
ment at  first  hand.      The   books  devoted  to  a  study  of 
political  and  civil  institutions  are  by  no  means  so  numerous 


Vlll 


Suggestions 


Constitu- 
tions, codes, 
and  charters. 


Registers  of 
officials. 


Statistical 
reports. 


as  the  political,  constitutional,  and  narrative  histories  of  the 
United  States,  but  a  few  are  of  exceptional  merit,  and  a 
valuable  civics  library  can  therefore  be  obtained  for  a  mod- 
erate sum. 

Every  class  should  be  provided  with  several  copies  of  the 
state  constitution,  and  if  possible  every  member  should  have 
one  in  his  possession  for  constant  reference.  Most  of  the 
states  publish  in  pamphlet  form  copies  of  the  constitution, 
which  can  be  obtained  for  class  room  use  gratis  or  at  a 
reasonable  cost.  At  least  one  copy  of  the  state  political 
code  which  gives  an  extended  account  of  the  state  and  local 
governments  should  be  easily  accessible,  provided  of  course 
the  laws  of  the  state  have  been  codified.  If  the  class  be- 
longs to  a  city  high  school,  it  will  be  desirable  to  have  for 
individual  and  class  use  a  number  of  copies  of  the  city 
charter. 

The  Official  Congressional  Directory,  issued  yearly  under 
the  direction  of  the  clerk  of  the  printing  records,  will  be 
sent  upon  application,  and  is  particularly  useful  for  the  brief 
biographies  of  members  of  Congress  and  the  summaries 
of  the  duties  performed  by  the  different  bureaus  of  the 
executive  departments.  Registers  of  state  officials  with 
information  relative  to  public  institutions  are  issued  in  a 
majority  of  the  states,  and  can  usually  be  obtained  through 
the  representatives  of  the  senatorial  or  assembly  district. 
Reports  of  national  or  state  bureaus  and  commissions  are 
usually  published  annually,  and  may  be  of  use  in  the  study 
of  some  special  subject. 

Statistical  information  of  value  can  be  procured  from  the 
proper  officials.  For  example,  reports  of  the  state  con- 
troller, of  the  county  clerk  or  auditor,  of  the  city  auditor  or 
treasurer,  are  published  at  frequent  intervals  and  give  infor- 
mation regarding  the  assessment  of  property,  the  tax  rate, 
receipts  and  expenditures  summarized  and  in  detail.  Sev- 
eral copies  of  each  can  probably  be  obtained  without  diffi- 
culty. Comparative  tables  showing  the  financial  statistics 
of  the  different  states  for  1890,  1895,  ^"^  ^9°®  ^^  P"^" 


Suggestiofis  fi 

lished  by  the  New  York  State  Library  for  ten  cents  a  num- 
ber. Similar  statistics  for  the  largest  cities  are  gathered  by 
the  United  States  Department  of  Labor  and  incorporated  in 
their  bulletins,  e.g.  that  for  September,  1900.  Information 
concerning  the  finances  of  the  national  government,  the 
amount  of  trade,  election  figures,  besides  reviews  of  legisla- 
tion for  the  previous  year,  party  platforms,  lists  of  national 
officials  past  and  present,  and  a  multitude  of  other  subjects 
are  contained  in  the  political  almanacs  issued  yearly  for 
twenty-five  cents  a  number  by  different  newspapers.  A 
copy  of  at  least  one  for  the  current  year  is  indispen- 
sable. 

Class-room  work  can  be  made  to  seem  more  real  by  Sample  bal- 
placing  in  the  hands  of  each  pupil  papers  in  whose  use  he  '°'^  ^"*^  , 
is  likely  to  be  especially  interested.     It  is  easy  to  get  from  "statements." 
the  city  or  county  clerk  samples  of  unused  but  cancelled 
ballots  for  some  previous  election.     The  tax  assessors  are 
almost  always  more  than  willing  to  furnish  teachers  with  a 
suitable  number  of  the  "  statements  "  which  assessable  citi- 
zens are  obliged  to  fill  out  and  return  each  year,  while 
blanks  upon  which  the  collectors  make  out  their  receipts 
are  readily  furnished  by  those  officials.     Blank  indentures, 
mortgages,  warrants,  and  other  legal  papers  are  obtainable 
at  the  book  stores  or  from  lawyers  at  but  slight  expense. 

If  the  pupils  have  access  to  a  fairly  large  library,  a  great  References 
deal  of  material  will  be  found  not  only  in  the  books  which  ^°  materials, 
are  named  later,  but  in  other  books  and  in  periodicals. 
Pupils  should  be  given  instruction  in  using  periodical  in- 
dexes and  such  bibliographies  as  may  be  obtainable.  Most 
of  the  latter,  however,  like  Mace's  Manual  of  American 
History,  the  bibliographical  notes  in  Winsor's  Narrative 
and  Critical  History  of  America  and  in  Channing  and 
Hart's  invaluable  Guide  to  the  Study  of  American  History 
are  historical  and  only  indirectly  touch  upon  government, 
the  bibliography  of  which  has  been  neglected.  For  the 
study  of  topics  in  particular  books,  the  attention  of  the 
pupils  should  be  constantly  recalled  to  all  time-saving  de- 


X  Suggestions 

vices,  such  as  the  use  of  the  table  of  contents  and  of  the 
indexes. 
Essentials  In  addition  to  this  material  which  costs  Uttle,  or  of  which 

for  a  school  jj  \^^  Q^jy  j^g  ygg^  every  class  should  have  at  least  a  small 
library  to  which  it  has  access  during  study  and  recitation 
hours.  Even  when  a  large  public  library  is  within  reach, 
one  for  a  school  is  essential.  As  the  number  of  the  books 
is  less  important  than  their  character,  it  will  probably  be 
found  more  satisfactory  to  secure  several  copies  of  the  best 
books  than  to  have  the  same  number  of  volumes  with  no 
duplicates  whatever.  If  possible,  every  pupil  should  have 
a  copy  of  some  good  high  school  American  history,  not 
necessarily  by  the  same  author,  in  fact  preferably  by  dif- 
ferent ones.  As  many  members  of  the  class  as  can  should 
also  have  individual  copies  of  the  abridged  edition  of  Bryce's 
American  Commonwealth,  or ,  in  lieu  of  this,  the  library 
should  contain  one  copy  for  every  four  or  five  pupils.  This 
is  the  one  book  indispensable  for  reference  when  studying 
the  nature  of  our  governments. 

The  following  libraries  are  suggested  for  class  use,  the 
first  one  being  intended  only  for  small  schools  with  limited 
library  funds. 

A  SMALL  LIBRARY 

Channing,  a  Students  History  of  the  United  States.    Macmillan.   $  1 .40. 
Bryce,  Tke  American  Commonwealth,  abridged  edition.      Macmillan. 

J51.75.     With  topics  and  questions  by  Clark  in  Outlines  of  Civics. 

75  cents. 
Hinsdale,  The  American  Government.    Werner.    J1.25. 
Wilson,  The  State.    Heath.    $2.00. 

A  FAIR  SIZED   LIBRARY 

The  books  given  above  and  the  following  :  — 

Macy,  The  English  Constitution.     Macmillan.     $2.00. 

"VLkcv.,  Method  in  History.     Ginn.     j^l.oo. 

Johnston,  American  Politics.     Holt.     80  cents. 

Hart  (ed.),  Epochs  of  American  History,  including  Thwaftes,  The 

Colonies;   Hart,  Formation  of  the  Union;   Wilson,  Division 

and  Reunion.     Longmans.     1^1.25  each. 


Suggestions  xl 

YvSKZt  Critical  Period  of  American  History.     Houghton.     $2.00. 

Vi KLVULVi,  Making  of  the  Nation.     Scribners.     ^^1.25. 

"RvKG^s^f  The  Middle  Period.     Scribners.     il-TS- 

Macdonald,   Select   Documents   Illustrative    of  American    History. 

(1776-1861.)     Macmillan.    $2.25. 
Tke  Federalist.     Several  editions  from  ^{1.50  to  $2.25. 
Cleveland,  Growth  of  Democracy.     Quadrangle  Press.     $2.00. 
SCHOULER,  Constitutional  Studies.     Dodd.     i^i-SO. 
CooLEY,  Principles  of  Constitutional  Law.     Little.     $2.50. 
HKKKison,  This  Country  of  Ours.     Scribners.     $1.25. 
Oberholtzer,  The  Referendum  in  America.     Scribners.     $2.00. 
VillCOX,  A  Study  of  City  Government.     Macmillan.     $1.50. 
Whitten,  Trend  of  Legislation  in  the  United  States.     New  York  State 

Library.     10  cents. 
Dallinger,  Nomination  for  Elective  Office.     Longmans.     $2.00. 
Plehn,  Public  Finance.     Macmillan.     $1.60. 
"ViHYTY.,  Money  and  Banking.     Ginn.     j^2.0o. 

Several  volumes  that  have  been  announced  should  be 
added  as  soon  as  they  are  published.    Among  them  are  :  — 

Burgess,  Civil  War  and  Reconstruction.     Scribners. 

Hart,  Government  under  American  Conditions.     Longmans. 

Dewey,  Financial  History  of  the  United  States.     Longmans. 

Moore,  American  Foreign  Policy.     Longmans. 

Morse,  History  of  Political  Parties  in  the  United  States.     Longmans. 

All  of  these  last  four  in  American  Citizen's  Series. 


A  LARGE  SCHOOL  LIBRARY 

The  books  given  above  and  the  following  :  — 

Lalor  (ed.).  Cyclopedia  of  Political  Science.  3  volumes.  Maynard. 
$15.00. 

Bluntschli,  Theory  of  the  State.     Macmillan.     1^3.50. 

Medley,  English  Constitutional  History.     Macmillan.     I3.25. 

Macdonald,  Documents.     (1606-1775.)     Macmillan.     $2.25. 

Madison,  Journal  of  the  Constitutional  Convention.  Albert,  Scott. 
52.50. 

Meigs,  Growth  of  the  Constitution.     Lippincott.     {2.50. 

Curtis,  Constitutional  History  of  the  United  States.  2  volumes.  Har- 
pers.    J6.00. 

Thorpe,  Constitutional  History  of  the  American  People.  2  volumes. 
Harpers.    1^5.00. 


xii  Suggestions 

Dunning,  Civil  War  and  Reconstruction.     Macmillan.     $2.00. 
Stanwood,  History  of  the  Presidency.     Houghton.     $2.50. 
Wright,  Industrial  Evolution  of  the  United  States.    Flood.    $1.00. 
BovTNZiA.,  Constitution  at  the  End  of  First  Century.    Ginn.    ^52.50. 
Burgess,  Political    Science    and   Comparative    Constitutional    Law. 

2  volumes.     Ginn.     ^^5.00. 
Lamphere,  United  States  Government.     Lippincott. 
Wilson,  Concessional  Government.     Houghton.    $1.25. 
McCONACHIE,  Congressional  Committees.     Crowell.     $l.^S. 
CooLEY,  Constitutional  Limitations.    Callaghan.    $6.00. 
Howard,  Local  Constitutional  History.    Johns  Hopkins.    J3.00. 
Maltbie,  Municipal  Functions.    New  York  Reform  Club.     50  cents. 
GooDNOW,  Municipal  Problems.     Macmillan.    5i-SO. 
Remsen,  Primary  Elections.     Putnam.     75  cents. 
"RoovY^  Education  in  the  United  States.     Appleton.    ^^1.50. 
Wines  and  Koren,  The  Liquor  Problem.     Houghton.    $1.50. 
VfAKNER,  American  Charities.    Crowell.    $1.75. 
Adams,  The  Science  of  Finance.     Holt.    $3.50. 
Laughlin,  Bimetallism  in  the  United  States.     Appleton.     $2.25. 
Hadley,  Railroad  Transportation.     Putnam.    $1.50. 
Jenks,  The  Trust  Problem.    Doubleday.    JjSi.oo. 
Stimson,  Labor  in  its  Relation  to  Law.    Scribners.     75  cents. 
Foster,  A  Century  of  American  Diplomacy.     Houghton.    $3.50. 
IKVSSIG,  Tariff  History  of  the  United  States.    Putnam.    J51.25. 


METHODS 

The  value  of      The  few  suggestions  that  are  given  in  the  following  para- 
mdirect  graphs  deal  almost  exclusively  with  work  outside  of  and  in 

review.  or  j 

^  connection  with  the  text-book.    The  extent  to  which  the 

book  itself  is  used  for  regular  recitations  must  depend  upon 
the  methods  adopted  by  each  teacher  as  likely  to  be  mos': 
satisfactory,  but  practically  all  of  the  latest  reports  upon  the 
subject  by  those  high  in  authority  favor  systematic  text-book 
work  as  the  only  means  of  giving  the  pupil  a  clear  and  defi- 
nite knowledge  of  important  facts.  Too  much  emphasis 
cannot  be  placed  upon  the  prime  necessity  of  accurate 
information  on  these  topics  before  the  students  are  set 
adrift  among  a  multitude  of  references,  and  attention  can- 
not too  frequently  be  recalled  to  the  need  of  constantly 


Suggestions  xiii 

reviewing  subjects  already  studied  whenever  these  earlier 
subjects  are  at  all  closely  connected  with  the  one  that  is 
being  studied.  I  do  not  mean  that  these  reviews  should 
be  previously  assigned,  but  merely  that  the  pupil  should 
always  be  held  responsible  for  anything  important  that  he 
has  gone  over,  and  that  every  opportunity  should  be  taken 
not  only  of  showing  the  relation  of  the  past  work  to  the 
present,  but  also  of  giving  the  pupil  a  firmer  and  more  real 
grasp  of  topics  that  may  slip  from  him  if  not  mentioned  at 
all  for  a  considerable  period  after  they  are  first  studied. 

With  regard  to  the  outside  work  first,  then  do  not  touch  The  use 
it  until  the  subject  as  presented  in  the  text- book  has  been  °^  ^^  . 

.         .  suggestive 

considered  in  regular  recitation  and  even  in  a  review  which  and  thought 
emphasizes  the  significant  facts  and  principles  only.  This  questions, 
may  be  followed  by  a  discussion  of  some  of  the  questions 
appended  to  each  chapter.  It  is  not  intended  that  any 
pupil  shall  study  more  than  a  small  percentage  of  the  sug- 
gestive questions  (those  under  heads  i,  2,  3,  etc.),  nor  that 
any  class  shall  consider  a  majority  of  them.  Very  few  of 
these  can  be  properly  treated  without  some  investigation  on 
the  part  of  the  pupil,  and  a  class  must  beware  of  attempt^ 
ing  to  do  too  much.  If  a  few  of  the  most  interesting  are 
assigned  to  certain  members  of  the  class  for  report  the  next 
day,  each  question  being  given  to  at  least  two  pupils,  time 
can  easily  be  found  for  the  reports  with,  in  many  cases,  brief 
discussion.  Where  the  question  calls  for  investigation  in 
one  or  more  reference  books,  the  pupil  should  always  be 
required  to  make  a  note  of  the  facts  and  opinions  discov- 
ered and  the  authority  by  whom  they  were  given.  But  he 
should  not  confine  himself  to  these  notes  in  making  his 
statement  to  the  class. 

A  large  proportion  of  the  present  day  questions  in  Parts  Use  of  the 

II  and  III  (those  under  heads  i,  ii,  iii,  etc.)  can  be  an-  Present  day 

^  '     '       '  '  questions, 

swered  m  most  classes  by  assigning  the  sets  to  different 

pupils,  each  pupil  having  at  least  one  set  upon  which  he  is 
held  responsible.  The  practical  nature  of  the  subjects  con- 
sidered, and  the  comparative  ease  with  which  most  of  the 


sir 


Suggestions 


Collateral 
reading  and 
short  papers. 


Longer 
theses. 


answers  may  be  found,  will  undoubtedly  quicken  and  main- 
tain the  interest  of  the  pupils  better  than  may  be  possible 
with  the  thought  questions. 

Additional  outside  work  which  should  be  undertaken  to 
some  extent  in  every  class  is  of  three  kinds :  ( i )  general 
collateral  reading ;  (2)  short  papers  upon  topics  of  a  limited 
scope ;  and  (3)  longer  papers  requiring  considerable  prepa- 
ration. For  the  collateral  reading  the  marginal  references 
will  furnish  abundant  material  unless  the  teacher  desires 
longer  accounts  than  those  mentioned.  These  marginal 
references  will  also  frequently  serve  as  an  aid  in  answering 
some  of  the  thought  questions,  and  may  be  made  the  basis 
of  the  short  papers  or  class  talks  which  constitute  the  sec- 
ond kind  of  outside  work.  In  the  preparation  of  these 
papers  the  pupils  should  never  be  permitted  to  confine 
themselves  to  a  single  book  unless  it  is  unavoidable,  but 
care  should  be  taken  that  they  use  several  and  use  them 
properly.  Unless  the  pupils  are  accustomed  to  work  of 
this  kind,  however,  they  should  be  introduced  to  it  gradu- 
ally. The  first  paper  can  be  based  upon  two  comparatively 
simple  narratives,  the  pupil  not  being  expected  to  give 
authorities  for  any  of  his  statements.  The  second  one 
might  well  deal  with  a  more  difficult  topic,  but  still  with  no 
attempt  to  give  specific  references.  But  for  all  subsequent 
studies  of  this  nature  where  the  results  of  his  investigation 
are  embodied  in  an  essay,  or  even  when  they  are  given 
orally  as  a  report  to  the  class,  he  should  be  asked  to  take 
and  preserve  notes  upon  what  he  has  read,  which  should 
give  not  only  statements,  but  references  to  the  book  and 
the  page.  These  references  should  be  repeated  in  his 
writing,  that  is,  he  should  be  asked  to  give  author,  book, 
and  page  reference  for  any  important  fact  mentioned  by 
only  one  authority  he  consulted,  or  for  any  fact  about  which 
the  statements  made  by  the  various  historians  disagreed. 

A  report  or  a  short  paper  may  be  required  every  week  or 
two,  but  there  should  be  no  attempt  to  have  in  one  year 
more  than  two  of  the  longer  essays,  which  employ  much  the 


Sttggestions  XV 

same  methods  with  the  expectation  of  going  quite  deeply 
into  some  subject.  Moreover,  the  pupil  should  not  be 
called  upon  for  any  short  papers  or  for  many  reports  while 
the  longer  one  is  being  prepared.  The  accounts  to  which 
the  pupil  may  be  referred  should  be  both  longer  and  more 
numerous  than  those  previously  used.  Some  of  the  sets 
of  references  given  at  the  end  of  each  chapter  may  serve 
the  purpose  ;  or,  if  Hbrary  facilities  are  limited  or  other  sub- 
jects are  preferred,  the  teacher  may  ask  the  pupil  to  select 
a  list  of  references  upon  some  topic  which  is  to  be  carefully 
revised  by  the  teacher  before  real  work  is  begun.  So  far  as 
possible,  the  pupils  should  make  a  provisional  outline  or 
topical  analysis  to  be  used  as  a  framework  for  the  essay, 
and  after  the  paper  is  completed  this  should  be  altered  so 
that  it  correctly  represents  the  topics  treated.  This  topical 
analysis,  after  submission  to  the  teacher,  is  to  be  placed 
upon  the  board  before  the  paper  is  read,  or,  if  it  can  be 
done,  mimeograph  copies  should  be  placed  in  the  hands 
of  every  pupil.  In  these  papers  as  in  the  shorter  ones,  the 
authorities  with  book  and  page  should  be  given  whenever 
necessary ;  but  the  extent  to  which  the  other  pupils  should 
be  compelled  to  take  notes  upon  these  papers  and  reports 
must  be  dictated  by  the  time  and  other  limitations  upon 
the  class. 

The  real  purpose  of  the  work  described  in  the  two  pre-  intensive 
ceding  paragraphs  is  the  training  of  the  individual  pupil  in  particular 
the  use  of  references  and  in  collecting  the  results  of  his  periods  in 
research ;  its  value  to  the  class  as  a  whole  is  purely  inci-  *^'*"* 
dental.     But  this  is  only  partially  true  of  the  study  con- 
nected with  the  questions  at  the  end  of  each  chapter,  and 
still  less  the  case  with  oral  reports  from  marginal  references 
which  supplement  the  text  upon  some  point  of  more  than 
usual  interest.      In  the  following  suggestions  for  intensive 
study  in  the  class  room,  it  is  believed  the  class  as  a  whole 
can  be  given  substantial  assistance  by  showing  them  how  to 
compare  different  accounts,  to  reconcile,  if  may  be,  con- 
flicting statements,  and  to  determine  what  amount  of  truth 


xvi  Suggestions 

or  error  lies  in  each.  A  good  period  for  study  is  that  im- 
mediately preceding  the  Revolutionary  War,  covering  the 
fifteen  years  from  1760  to  1775.  Upon  this  there  are  a 
number  of  excellent  accounts  of  moderate  length,  repre- 
senting several  different  points  of  view,  e.g.  Hart's  Forma- 
tion of  the  Union,  Sloane's  French  War  and  Revolution, 
Channing's  Student's  History  and  the  United  States,  1765- 
1865,  Lodge's  Colonies,  Fiske's  American  Revolution,  Vol.  I, 
Lecky's  American  Revolution,  Green's  Short  History  of  the 
English  People,  Gardner's  History  of  England,  etc.  If  a 
dozen  or  more  copies  of  these  different  books  can  be  ob- 
tained and  each  pupil  held  responsible  for  the  book  assigned 
him  (an  outline  being  used  to  denote  what  topics  will  be 
considered),  he  will  be  obliged  to  find  out  what  his  book 
says  on  each  topic  and  to  discard  what  it  says  on  others  not 
taken  up.  With  the  facts  and  opinions  from  these  books 
before  it,  the  class  will  then  have  an  opportunity  to  note 
down  and  later  compare  these  accounts.  Constant  watch- 
fulness will  be  necessary  to  see  that  the  study  does  not 
degenerate  into  a  mere  comparison  of  differences  for  the 
sake  of  finding  what  differences  there  are,  rather  than  for 
the  purpose  of  ascertaining  the  truth  about  the  topic  under 
discussion. 
Use  of  tables  It  is  frequently  found  that  the  best  idea  of  a  subject  is 
and  outlines,  gained  by  placing  it  in  the  form  of  a  table  or  outline.  When 
the  data  belong  to  several  sources  that  are  contemporaneous, 
the  table  may  be  used  to  make  a  comparative  analysis; 
when  they  follow  each  other  in  historical  sequence,  an  out- 
line will  be  necessary.  Both  can  be  used  to  simplify  the 
work  either  of  the  class  or  of  individuals,  and  the  gain  in  a 
better  grasp  of  the  subject  and  in  convenience  for  review 
will  usually  more  than  repay  the  time  spent  on  the  analysis. 
The  danger  comes  from  placing  too  great  dependence  upon 
the  method,  particularly  with  the  outline.  The  relation 
existing  between  one  event  and  another  may  not  be  indi- 
cated, and  the  analysis  may  be  nothing  more  than  a  com- 


Suggestions  xvii 

bination  of  unimportant  facts,  while  the  one  important  truth 
is  missed. 

In  conclusion  it  may  be  well  to  urge  that  the  methods  Mental  train- 
adopted  in  the  recitation  and  in  outside  study  should  have  '"^  rather 

^  ■'  than  acquisi- 

as  their  principal  aim  the  training  of  the  mind  and  not  the  tion  of  infor- 
acquiring  of  information.  More  than  anything  else  must  nation  the 
the  pupil  be  taught  to  discriminate  between  what  is  impor- 
tant and  what  is  unimportant,  discarding  what  is  of  no 
value  and  making  an  effort  to  retain  the  few  things  worth 
while.  It  is  well  not  to  forget  that  in  history  and  civics 
facts  are  absolutely  essential  for  any  training  that  is  worthy 
of  the  name,  and  that  an  accurate  knowledge  of  facts  is  a 
help  of  the  highest  value  without  which  reasoning  is  useless 
and  judgment  little  better  than  prejudice.  Facts  should, 
therefore,  not  be  despised  nor  neglected,  nor  should  the 
importance  of  memorizing  them  for  temporary  or  perma- 
nent use  be  minimized,  but  not  even  those  that  deal  with 
the  things  of  to-day  should  be  made  an  end  in  themselves, 
but  a  means  to  acquire  that  knowledge  of  the  trend  of 
events  and  of  the  nature  of  our  civil  governments  which 
shall  enable  us  to  see  things  as  they  are  and  do  what  is  best 
for  our  country's  good. 

All  of  these  suggestions  have  been  tested  by  the  author 
with  classes  varying  in  size  from  five  to  thirty,  and  he 
believes  that  the  results  have  been  satisfactory. 


ABBREVIATIONS 

COMMONLY  USED   IN   REFERENCES 


A.  A.  A Annals  of  the  American  Academy  of  Political 

and  Social  Science. 

A.  H.  A Reports  of  the  American  Historical  Associa- 
tion. 

At,  Mo Atlantic  Monthly. 

Bryce Bryce,  The  American  Commonwealth,  abridged 

edition. 

Channing  ....  Channing,  Students'  History  of  the  United 
States, 

Harper's Harper's  Monthly  Magazine. 

Hinsdale \\m%<\a.\t,  The  American  Government, 

J,  H.  U,  S.  .  ,  .  .  Johns  Hopkins  University  Series  in  Historical 
and  Political  Science. 

Lalor Lalor  (ed.) ,  Cyclopedia  of  Political  Science, 

P.  S.  Q Political  Science  Quarterly. 

N.  A.  R. North  American  Review. 

Story,  Commentaries  .     Story,  Commentaries  on  the  Constitution. 

Amer American. 

Cong Congressional. 

Const Constitution. 

const'l constitutional. 

econ economy  or  economic. 

Eng English. 

hist historical  or  history. 

jol journal. 

pol political. 

R. Review. 

Soc Sociology. 

Unless  otherwise  indicated,  all  reference  are  Xo  pages,  and  to  the  last 
edition  published  before  1901. 


TOPICAL   ANALYSIS 

CHAPTER  I 
Some  Elements  of  Politics.    §§  1-39 

SECTION 

Development  of  political  societies I 

The  State : 

(1)  The  State  and  the  nation, 

a.  Definitions  of  the  State 2 

d.  The  nation 3 

(2)  Theories  concerning  the  origin  and  nature  of  the  State  .  4 

a.  Theory  of  divine  right    ......  5 

d.  Contract  theory 6 

c.  Natural  or  historical  theory 7 

(3)  Natural  theory  and  social  duties 8 

(4)  The  kinds  of  States 9 

(5)  Historical  forms  of  States, 

a.  General 10 

d.  Federal  States  and  Confederacies  •        .        .        .11 

c.  The  Federal  State 12 

(6)  Characteristics  of  modern  States 13 

Sovereignty  and  constitutions: 

(i)  Character  of  sovereignty 14 

(2)  Disputes  concerning  the  nature  of  sovereignty       .        .  15 

(3)  Written  and  unwritten  constitutions, 

a.  Distinction  between 16 

d.  Advantages  of  a  written  constitution      .        .        •  1 7 
Government : 

(i)  Development  of  government  .        •        .        .         •        .18 

(2)  Government  and  the  State      ......  19 

(3)  Qassification  of  government  as, 

a.  Monarchical  or 20 

6.  Democratic 21 

c.  Centralized  or  dual 22 

d  Presidential  or  parliamentary          ....  23 


xxii  Topical  Analysis 

(4)  The  departments  of  government,  sbction 

a.  Legislative 24 

b.  Executive 25 

c.  Judicial 26 

4.  Sphere  of  State  activity : 

(i)  Theories  concerning 27 

(2)  Proper  functions  of  government 28 

a.  Constituent. 

b.  "  Ministrant." 

(3)  Limits  of  State  interference 29 

5.  Law,  Liberty,  Equality : 

(i)  Growth  of  law 30 

(2)  The  relation  of  law  to  liberty 31 

(3)  The  kinds  of  law 32 

(4)  The  kinds  of  liberty 33 

(5)  The  kinds  of  equality 34 

6.  Processes  in  poHtical  growth  : 

(i)  Society  and  its  institutions 35 

(2)  Nature  of  revolution  and  evolution        ....  36 

(3)  Some  lessons  of  history, 

a.  Slavery 37 

b.  Mortality  of  States 38 

c.  Tendencies  of  modern  development       •        •        •  39 


PART   I 

HISTORICAL  DEVELOPMENT 

CHAPTER  II 
Development  on  English  Soil.    §§  40-50 

England  before  1600: 

( 1 )  Liberty  and  government  in  Saxon  England    ...      40 

(2)  Essential  factors  in  English  constitutional  development      41 

(3)  The  Norman  rule :  general  characteristics      ...       42 

(4)  Contest  between  the  Crown  and  the  nobility, 

a.  Thirteenth  century 43 

b.  Fourteenth  to  sixteenth  centuries  ....      44 
England  at  the  close  of  the  Tudor  period : 

(1)  Central  government        .        .        .        .        .  '     .        -45 

(2)  Local  governments 46 

(3)  The  "rights  of  Englishmen" 47 


Topical  Atialysis  xxiii 

Constitutional  development  since  1600:  section 

(i)  The  revolutions  of  the  seventeenth  century    ...      48 

(2)  The  cabinet  system 49 

(3)  The  constitution  made  democratic         ....      50 


CHAPTER  III 

The  Colonial  Period.    §§  51-79 

1.  Introductory: 

(i)  The  planting  of  colonies 51 

(2)  Influences  affecting  colonies 52 

(3)  Lines  of  political  development 53 

(4)  The  charter  of  1606 54 

2.  The  Southern  colonies : 

(i)  General  character  of  political  and  social  conditions        .  55 

(2)  The  first  Virginia  Assembly 56 

(3)  The  people  and  the  colonial  government        •        •        •  57 

(4)  Local  government 58 

3.  New  England : 

(i)  General  character  of  political  and  social  conditions        .  59 

(2)  Early  constitutional  development  in  Massachusetts        .  60 

(3)  The  Connecticut  constitution  (1639)      ....  61 

(4)  The  town  meeting 62 

4.  Middle  colonies : 

(i)  New  York 63 

(2)  Pennsylvania 64 

5.  Colonial  government : 

(1)  General 65 

(2)  The  charter  as  a  colonial  constitution     ....  66 

(3)  The  governor 67 

(4)  The  legislature, 

a.  Organization  and  method  of  legislation  .        .  68 

b.  Development  of  a  bicameral  system        ...  69 

c.  Growth  of  the  power  of  the  Assembly    ...  70 

(5)  England  and  the  colonies, 

a.  Relation  of  the  colonies  to  the  King      ...  71 

b.  Parliament  and  the  colonies 73 

6.  Liberty: 

(i)  Political  freedom 73 

(2)  Economic  freedom 74 

(3)  Social  and  other  inequalities  among  whites    ...  75 

(4)  Slavery 76 


xxiv  Topical  Attalysis 

7.   Union :  section 

(i)  Union  before  1750:  New  England  Confederation  .        ,       77 

(2)  Albany  plan  of  union 78 

Comparison   of  English  and  American    constitutional  de- 
velopment        79 

CHAPTER  IV 

The  Revolution  (i  763-1 787).    §§  80-105 

1.  Introduction: 

(i)  Character  of  the  Revolution 80 

(2)  Effects  of  the  Revolution 81 

(3)  The  situation  in  1 760 82 

2.  The  beginnings  of  revolution : 

(1)  The  conflict  precipitated, 

a.  New  colonial  policy  of  England     ....  83 

b.  The  Stamp  Act 84 

c.  The  Townshend  acts 85 

(2)  The  organization  of  opposition, 

a.  Intercolonial  committees  of  correspondence  .        .      86 

b.  The  first  Continental  Congress       ....      87 

(a)  The  Congress  called. 
(^)  Its  work  and  influence. 

c.  The  second  Continental  Congress  ....      88 

(a)  Powers. 
{b)  Authority. 

3.  Union  and  independence  during  the  war : 

(i)  Declaration  of  Independence, 

a.  History 89 

b.  Character 90 

c.  Influence 91 

(2)  The  first  state  constitutions, 

a.  Formation  and  significance 92 

b.  Characteristics 93 

4.  The  Confederation : 

(i)  Formation  of  the  Confederation 94 

(2)  Character  of  the  Articles  of  Confederation     •        •        •  95 

(3)  Defects  of  the  Confederation 96 

(4)  Failure  of  the  Confederation 97 

5.  Nationality  and  liberty  during  the  Confederation : 

(i)  Development  of  conditions  favorable  to  nationality        .  98 

a.  Commerce 99 

b.  The  public  domain loo 

c.  Religious  organizations loi 


Topical  Analysis 


XXV 


(2)  Political  and  social  reform,  section 

a.  Religion 102 

b.  Gass  distinctions 103 

c.  Political  qualifications 104 

(3)  G)ndition  of  the  United  States  in  1787  .        .        .        .     105 


CHAPTER  V 


The  Constitution  (1787-1789).    §§  106-138 

A  convention  called : 

(1)  Feeling  regarding  a  constitutional  convention         .         .  106 

(2)  The  purpose  of  the  Convention 107 

(3)  The  members 108 

The  work  of  the  Convention  : 

(1)  The  question  of  nationalism, 

a.  Virginia  plan 109 

b.  The  contest  over  nationalism         .        .        .        .no 

c.  The  compromise  over  representation  in  Congress  .  in 

(2)  Other  questions  and  compromises H2 

a.  The  three-fifths  compromise II3 

b.  The  last  great  compromise 114 

c.  Important  details 115 

d.  Method  of  amendment 1 16 

Ratification : 

(1)  Influences  affecting  ratification II 7 

(2)  The  first  states II8 

(3)  The  later  states 119 

(4)  The  first  ten  amendments 120 

The  Constitution  as  completed : 

(i)  General  character, 

a.  The  Federal  State 121 

b.  The  central  government  and  the  Constitution  (1787  . 

and  since) 122 

<•.  A  government  of  checks  and  balances    .        .        .  123 

d.  Theories  concerning  the  Constitution     .        .        .124 

(<jt)  Compact  theory    .         .         .         •         •         •  '  25 

(J))  National  theory 126 

e.  The  preamble 127 

(2)  The  Congress, 

a.  The  Senate 128 

b.  The  House  of  Representatives       .        .        .        .129 

c.  Powers  of  Congress 130 


xxvi  Topical  Analysis 

(3)  Other  departments,  section 

a.  The  Executive 131 

b.  The  Judiciary 132 

(4)  The  nation  and  the  states, 

a.  General  relation     . 133 

b.  Prohibitions  on  the  states 134 

c.  Prohibitions  and  limitations  on  the  United  States 

government 135 

(5)  Sources 136 

a.  English  sources 137 

b.  American  sources 138 

CHAPTER  VI 

Nationality  and  Colonialism  (1789-1815).    §§  139-161 

1.  The  national  era: 

(1)  Character  of  nationality          ......  139 

(2)  The  three  periods  of  national  development    .         .         .  140 

(3)  Conditions  affecting  nationality      .....  141 

2.  Organization  of  the  government : 

(1)  The  executive, 

a.  The  President 142 

b.  The  executive  departments 143 

(2)  The  Congress 144 

(3)  The  judiciary 145 

(4)  Questions  of  policy, 

a.  Finance 146 

(a)  Revenue 147 

\b)   Public  debts I48 

(c)  National  bank 149 

b.  Foreign  affairs 150 

3.  Political  parties : 

(i)  Formation  of  parties, 

a.  Democratic- Republican 151 

b.  Federalist  party      .         .         .         .         .         .         •  152 

(2)  Federalist  excesses  and  the  results, 

a.  Alien  and  sedition  laws 153 

b.  Virginia  and  Kentucky  resolutions         .        .        .  154 

c.  "Revolution  of  1800" 155 

4.  Republican  supremacy : 

(l)  Louisiana, 

a.  The  purchase 156 

b.  Influence  of  the  purchase 157 


Topical  Analysis  xxvii 

SECTION 

(2)  Foreign  domination 158 

(3)  Nationalist  reaction 159 

Development  in  the  states : 

(i)  The  westward  movement 160 

(2)  The  state  constitutions l6l 


CHAPTER  VII 

Nationality  and  Democracy  (1815-1845).    §§  162-190 

The  movement  toward  democracy 162 

The  new  nationality: 
(i)  Altered  conditions, 

a.  Economic  changes 1 63 

h.  The  United  States  Bank 1 64 

(2)  The  westward  movement, 

a.  Internal  improvements  ......  165 

b.  The  Missouri  question, 

{a)  The  Compromise  ......  166 

(J))  Effects  of  the  Compromise    ....  167 

(3)  The  Supreme  Court 168 

(4)  Foreign  affairs 169 

Political  reorganization  on  a  democratic  basis : 

(i)  Democracy  in  the  states  (1815-1830)    ....  170 

(2)  Party  changes 171 

(3)  New  political  methods, 

a.  The  convention  system  .         .         .         .         .         .172 

b.  Other  methods 1 73 

(4)  The  executive, 

a.  The  presidency  made  democratic  .        .        .        .174 

b.  Results  of  the  change 175 

Questions  affecting  nationality: 

(i)  Influences  unfavorable  to  nationality, 

a.  The  Cherokee  Case        .         .         .         .         .         .176 

b.  Nullification  of  the  tariff" 177 

c.  Other  political  questions 178 

(2)  Influences  favorable  to  nationality, 

a.  The  new  states 179 

b.  P'oreign  immigration       .        .        .        .        .        .180 

c.  Improved  means  of  communication         .         .         .  181 
Phases  of  later  democratic  development  ( 1 830-1 860)      .         .182 

(i)  Constitutional  changes 183 


xxviii  Topical  Analysis 

(2)  Changes  in  state  government,  section 

a.  Executive  and  legislative  branches         .        .        .184 

b.  The  judiciary 185 

(3)  Increased  state  activity, 

a.  Finance 186 

b.  Education 187 

c.  Equalization  of  rights 188 

(4)  Local  government, 

a.  Towns  and  counties 189 

b.  Municipal  government 190 

CHAPTER   VIII 
Nationality  and  Slavery  (1845-1877).    §§  191-214 

Slavery  and  the  South 191 

1.  Slavery  before  1845  • 

(i)  Slavery  in  the  states 192 

(2)  Slavery  in  national  territory 193 

(3)  Increase  of  sectionalism 194 

2.  Slavery  in  the  territories  (1845- 1860)  • 

(i)  The  Compromise  of  1850 195 

(2)  The  Kansas-Nebraska  Bill 196 

(3)  The  Dred  Scott  Case 197 

3.  Secession  and  Civil  War : 

(1)  Secession 198 

(2)  Comparison  of  the  North  and  the  South, 

a.  The  South  and  the  North  in  1776  .        .        .        .199 

b.  The  South  (1776-1 861) 200 

c.  Advantages  of  the  North  over  the  South        .        .201 

(3)  The  situation  in  1861 202 

(4)  The  failure  of  secession 203 

(5)  The  Constitution  during  the  Civil  War  ....  204 

4.  Reconstruction 205 

(1)  Restoration, 

a.  Status  of  the  seceded  states 206 

b.  Flans  of  restoration 207 

(2)  Early  reconstruction  period, 

a.  Negro  legislation 208 

b.  Military  reconstruction 209 

c.  Impeachment  of  President  Johnson        .        .        .  210 

d.  Effect  of  the  verdict  on  impeachment     .        .        .211 

(3)  Later  reconstruction, 

a.  The  constitutional  amendments     .        .        .        .212 


Topical  Analysis  xxix 

SECTION 

b.  The  Supreme  Court  on  reconstruction  questions    .  213 

c.  The  aftermath  of  reconstruction     ....  214 

CHAPTER  IX 

The  New  Nation  (1865-1901).    §§  215-231 

Economic  features  of  the  new  nation : 
(i)  Changed  economic  conditions, 

a.  Conditions  before  the  war 215 

b.  Conditions  after  the  war 216 

(2)  Development  of  industry  and  commerce        .        .        .217 

(3)  Government  control  of  economic  institutions, 

a.  The  control  of  railroads 218 

b.  Regulations  for  industrial  corporations  .        .        .  219 

c.  The  tariff 220 

d.  The  currency 221 

The  states : 

(i)  The  people  and  the  state  constitutions  ....  222 

(2)  The  suffrage 223 

(3)  Reform  of  elections 224 

(4)  Civil  Service  Reform 225 

Foreign  affairs : 

(i)  Cuba  and  the  United  States 226 

(2)  Acquisitions  of  territory 227 

The  Constitution  at  the  end  of  a  century : 

(i)  The  nation  and  the  states 228 

(2)  The  central  government 229 

(3)  The  unwritten  constitution 230 

(4)  Popular  cooperation  in  government       .        .        .        .231 


PART   II 

GOVERNMENT 

CHAPTER  X 
General  Character  of  American  Federalism.    §§  232-254 

Centralization  and  decentralization : 

(1)  Centralizing  tendencies  in  modern  history      .        .        .     232 

(2)  Centralization  in  the  United  States, 

a.  Before  1790 233 

b.  Since  1790 234 


XXX  Topical  Analysis 

(3)  Advantages  of  a  federal  system.  sbction 

a.  Negative  advantages 235 

b.  Positive  advantages 236 

(4)  Disadvantages  of  a  federal  system 237 

2.  The  nation  and  the  states : 

(i)  General  distribution  of  powers 238 

(2)  The  nation, 

a.  Sphere  of  national  government       ....     239 

b.  Powers  exercised  by  the  United  States  government     240 

(3)  Powers  concurrently  exercised  by  the  United  States  or 

the  state  governments 241 

(4)  Sphere  of  state  activity 242 

(5)  Prohibitions  and  limitations, 

a.  Purpose  and  classes  of  prohibitions  upon  govern- 

ment     243 

b.  ProhiI)itions  on  the  states 244 

c.  Prohibitions  upon  the  United  States  government    .  245 

(6)  Interdependence  of  the  national  and  state  governments  246 

3.  American  citizenship : 

(i)  Dual  character  of  American  citizenship .        .        .        .     247 

(2)  The  Fourteenth  Amendment, 

a.  Definition  of  citizenship  .....     248 

b.  Interpretation  of  the  amendment  (Slaughter  House 

Cases) 249 

(3)  Privileges  and  immunities  of  citizenship, 

a.  United  States  citizenship 250 

b.  State  citizenship 251 

(4)  Naturalization 252 

4.  The  future  of  the  Federal  State : 

( 1 )  The  permanence  of  American  federalism        .         .         .     253 

(2)  Conditions  affecting  American  federalism       .        .        .     254 


CHAPTER  XI 
The  Senate.    §§  255-276 

Regulations  for  both  houses : 

(1)  The  Congress 255 

a.  The  bicameral  legislature  in  history        .        .        .     256 

b.  Sessions  of  Congress 257 

(2)  Membership, 

a.  Privileges  of  members 258 

b.  Compensation •        •    259 


Topical  Analysis  xxxi 

(3)  Legislation,  section 

a.  Method  of  legislation 260 

b.  Difficulties  in  passing  laws, 

(a)  Obstruction 261 

(J>)  Conference  committees         ....  262 

(<•)  Congress  and  the  veto 263 

The  Senate :  membership  and  organization : 

( 1 )  Composition  of  the  Senate 264 

a.  The  upper  houses  in  other  countries      .        .         .  265 

(2)  Qualifications  of  senators 266 

(3)  Elections, 

a.  Present  method 267 

b.  Proposed  changes 268 

(4)  Organization, 

a.  Officers 269 

b.  Committees 270 

c.  Senate  regulations 271 

Special  powers  of  the  Senate : 

(i)  Appointment 272 

(2)  Treaties 273 

(3)  Method  of  impeachment 274 

(4)  Other  special  powers 275 

(5)  Sources  of  senatorial  influence 276 


CHAPTER  XII 

The  House  of  Representatives.    §§  277-300 

Composition : 
(i)  General, 

a.  Theory  of  membership 277 

b.  Method  of  apportionment 278 

(2)  Term  and  qualification  of  representatives       .        .        .    279 

(3)  Election, 

a.  Congressional  districts 280 

b.  Proportional  representation 281 

c.  Contested  elections 282 

Organization  and  work  of  the  House : 

(1)  General  character 283 

(2)  Committee  on  rules 284 

(3)  The  speaker, 

a.  Power 285 

b.  Growth  of  the  speaker's  power       ....    286 


xxxii  Topical  Analysis 

(4)  The  committee  system,  section 

a.  Development  and  methods 287 

b.  Criticisms 288 

(5)  The  legislative  process, 

a.  The  course  of  a  bill 289 

b.  The  transaction  of  business 290 

c.  The  committees  of  the  whole         .        .        .        .291 

3.  Special  powers  of  the  House : 

(1)  Regarding  revenue, 

a.  The  raising  of  revenue 292 

b.  Sources  of  revenue 293 

c.  DiflSculties  encountered  by  the  committee  on  ways 

and  means 294 

(2)  The  regulation  of  expenditure 295 

(3)  The  reform  of  financial  methods 296 

(4)  Election  of  a  President 297 

4.  Position  of  the  House : 

(i)  Characteristics        ........  298 

(2)  The  House  and  the  Senate 299 

(3)  The  future  organization  of  the  House    ....  300 

CHAPTER   Xni 
The  Powers  of  Congress,    §§  301-325 

General  powers 301 

1.  Financial : 

(i)  Taxation 302 

(2)  Borrowing  money 303 

2.  Military: 

(i)  Military  power  and  the  army 304 

(2)  The  militia 305 

(3)  The  navy 306 

(4)  Coast  defence 307 

3.  Territorial: 

(1)  Territorial  control, 

a.  Views  regarding 308 

b.  Principles  of 309 

(2)  Acquisition  of  territory 310 

(3)  Territorial  government, 

a.  Organized  territories 311 

b.  District  of  Columbia 312 

(4)  Admission  of  new  states, 

a.  Usual  methods        .......  313 

b.  Limitations  upon  admission  of       ...        .  314 


Topical  Analysis 


XXXIU 


SECTION 

(5)  Congress  in  the  states 315 

Commercial : 
(i)  Foreign  commerce, 

a.  The  subject  in  the  Convention  of  1787   .         .         .316 

b.  Means  of  promoting  foreign  commerce  .         .        .     317 

(2)  Interstate  commerce 318 

(3)  Commercial  regulations  relating  to 

a.  Bankruptcy  laws    .         .         .         .        .         .        -319 

b.  Coins 320 

c.  Weights  and  measures 321 

Miscellaneous : 

(i)  Naturalization 322 

(2)  Treason  and  piracy 323 

(3)  Other  powers 324 

(4)  The  elastic  clause 325 


CHAPTER  XIV 


The  President.    §§  326-351 

Position  of  the  President 326 

Election : 
(i)  Constitutional  provisions, 

a.  Qualifications 327 

b.  Term  and  compensation 328 

c.  First  method  of  election 329 

(2)  Present  method  of  election, 

a.  Nomination 330 

b.  The  campaign 331 

c.  The  electoral  college, 

(a)  Selection  of  presidential  electors  .        .         .  332 

(3)  Counting  the  votes 333 

(3)  Other  plans  for  choosing  the  President  ....  334 

(4)  The  presidential  succession 335 

(5)  The  inauguration 336 

Powers : 

(i)  Introductory, 

a.  History  of  the  President's  power   ....    337 

b.  The  execution  of  law 338 

(2)  Military, 

a.  General  military  powers  in  time  of  war  .        .         .     339 

b.  In  internal  affairs 340 


xxxiv  Topical  Analysis 

(3)  Appointment  and  removal,  sbction 

a.  Appointment, 

(<z)  In  history 341 

(J>)  At  present 342 

(t)  Observations  on  the  power  ....  343 

b.  Removal 344 

c.  The  civil  service 345 

(4)  Legislative, 

a.  Historical 346 

b.  The  President's  message 347 

c.  The  veto 348 

(5)  Foreign  affairs, 

a.  Treaties 349 

b.  Other  foreign  affairs 350 

(6)  Judicial  power 35 1 

CHAPTER  XV 
The  Executive  Departments.    §§  352-373 

The  departments  and  the  Cabinet 352 

1.  The  Department  of  State : 

(i)  Duties  of  the  Secretary 353 

(2)  Representatives  abroad, 

a.  The  diplomatic  service 354 

b.  Consuls 355 

c.  Reform  of  the  system 356 

2.  The  post-office : 

(i)  History  and  purpose 357 

(2)  Organization  and  work 358 

(3)  Defects  of  the  postal  system 359 

3.  The  Interior  Department : 

(i)  The  department  in  general 360 

(2)  Land  policy 361 

(3)  Pensions 362 

(4)  Indian  affairs 363 

'        (5)  Patent  office 364 

(6)  Other  bureaus 365 

4.  Other  departments : 

(i)  The  Treasury  Department 366 

(2)  The  War  Department 367 

(3)  The  Navy  Department 368 

(4)  The  Department  of  Justice 369 

(5)  Department  of  Agriculture 370 


Topical  Analysis  xxxv 

Bureaus  and  commissions  outside  the  Cabinet :                         section 
(i)  The  Department  of  Labor 371 

(2)  The  industrial  commission 372 

(3)  Other  commissions 373 

CHAPTER  XVI 
The  Judicial  Department.    §§  374-388 

The  judiciary  and  the  Constitution : 

( 1 )  Position  of  the  courts  in  our  constitutional  system .        .    374 

(2)  Unconstitutional  legislation, 

a.  Declaring  laws  unconstitutional      ....  375 

b.  Historical  use  of  the  power 376 

(3)  Some  rules  of  judicial  interpretation       ....  377 
The  judicial  department  as  a  whole : 

(i)  The  system  of  courts 378 

(2)  Term  and  appointment  of  judges 379 

(3)  Jurisdiction, 

a.  Classes  of  cases 380 

b.  Methods  and  jurisdiction :  historical       .         .         .  381 

(4)  Relation  to  state  courts 382 

The  Supreme  Court : 

(i)  Organization 383 

(2)  Jurisdiction 384 

Inferior  courts 

(i)  Circuit  court  of  appeals 385 

(2)  Circuit  courts 386 

(3)  District  courts 387 

(4)  Court  of  claims 388 

CHAPTER   XVII 

The  Relations  of  the  Three  Departments. 
§§  389-407 

Introductory :  the  two  demands  on  a  government  organization     389 
General  relations  of  executive  and  legislature : 
(i)  Two  types  of  government 390 

(2)  The  Cabinet  system, 

a.  Character 391 

b.  Advantages 392 

c.  Under  English  and  American  conditions        .        .  393 

(3)  Presidential  government, 

a.  Character 394 

b.  Advantages 395 


xxxvi  Topical  Analysis 

2.  Congress  and  the  President :  section 

(i)  Congressional  control 

a.  Over  the  executive  departments     ....  396 

i.  Over  the  President  ......  397 

c.  The  Senate  and  the  President        ....  398 

(2)  Executive  independence, 

a.  Executive  domination  of  Congress  .        .        ,     399 

d.  Uncontrolled  power  of  the  President      .        .        .    400 

(3)  CoSperation  between  the  departments, 

a.  At  present 401 

d.  As  afiected  by  political  parties        ....  402 

c.  Closer  union  of  the  departments    ....  403 

3.  The  courts  and  the  other  departments : 

(i)  Congress  and  the  courts, 

a.  Influence  of  the  judiciary  over  Congress         .        .  404 

i.  Judicial  dependence  upon  Congress       .        .        .  40$ 

(2)  The  President  and  the  courts 406 

Conclusion :  the  departments  in  the  states    ....  407 

CHAPTER  XVIII 

The  States  :  Constitutions  and  Government.    §§  408-437 

Introductory : 

Position  of  the  states 408 

Uniformities  and  diversities  among  the  states         .        .    409 

1.  The  constitutions : 

(i)  History, 

a.  The  development  of  the  written  constitution  .        .     410 
^.  The  three  stages  in  constitution  making         .         .411 

(2)  Formation, 

a.  Process  of  forming  a  constitution  at  the  present     .  412 

i.  Amendment 413 

c.  Frequency  of  changes 414 

(3)  Features, 

a.  Contents 415 

i.  Bills  of  rights 416 

2.  The  legislature : 

(1)  The  state  government  in  general 417 

(2)  Organization, 

a.  Composition  of  the  Senate 418 

i.  Composition  of  the  lower  house     ....  419 

c.  Sessions 420 

d.  Legislative  regulations 421 


Topical  Analysis  xxxvii 

(3)  Limitations  and  prohibitions  on  legislation,  sbction 

a.  Prohibitions, 

(a)  Due   to   legislation   by   constitutional    con- 
vention       422 

(J>)  Powers  not  exercised  by  any  authority .         .  423 

b.  Limitations  regarding 

(a)  Local  and  special  legislation         .         .        .  424 

(d)  Legislative  procedure 425 

(r)  Finance 426 

(4)  Character, 

a.  Real  power 427 

b.  Powers  of  the  separate  houses        ....  428 

c.  Defects 429 

The  executive : 

(i)  Decentralization  of  the  administration    ....  430 

(2)  Powers  of  the  governor 431 

(3)  Central  executive  officials 432 

(4)  Term  and  qualifications  of  officials          ....  433 
The  judiciary : 

(i)  General 434 

(2)  System  of  courts 435 

(3)  The  judges, 

a.  Selection 436 

b.  Term  and  qualifications 437 

CHAPTER   XIX 

Some  Phases  of  State  Activity.    §§  438-465 

Uniformity  and  diversity  in  state  laws : 

(1)  General 438 

(2)  Disadvantages  of  diversity  in  relation  to, 

a.  Marriage  and  divorce 439 

b.  Control  of  corporations 440 

c.  Criminal  legislation 441 

(3)  Uniformity, 

a.  Lack  of  uniformity  an  apparent  rather  than  a  real  evil  442 

b.  Means  of  producing  greater  uniformity  .         .         .  443 

c.  Extent  of  uniformity       ......  444 

The  public  school  system : 

(i)  Evolution 445 

(2)  State  regulations, 

a.  State  systems  of  education 446 

b.  The  state  school  board  and  superintendent    .        .  447 


xxxviii  Topical  Analysis 

(3)  Administration,  sbction 

a.  Local  school  administration 448 

b.  School  finances 449 

(4)  The  preparation  and  selection  of  teachers      .        .        .  450 

3.  Control  of  the  liquor  traffic : 

(i)  The  liquor  problem 451 

(2)  Systems  of  state  control 452 

a.  The  dispensary 453 

b.  The  license  system 454 

c.  State  prohibition 455 

d.  Local  option 456 

(3)  General  results  of  liquor  legislation  and  control      .        -457 

4.  Punishment  and  reformation : 

(i)  Historical 458 

(2)  Penal  institutions, 

a.  The  state  prisons 459 

b.  The  state  reformatories 460 

c.  Local  institutions 461 

(3)  The  problem  of  correction  and  reformation    .        ,        .  462 

5.  Conclusion: 

(i)  Other  state  activities 463 

(2)  Increase  of  state  activity 464 

(3)  State  finance 465 


CHAPTER  XX 
Town  and  County  Government.    §§  466-487 

The  state  and  the  localities : 

( 1 )  Legislative  centralization  of  the  state     ....    466 

(2)  Administrative  decentralization, 

a.  Characteristics 467 

b.  How  its  dangers  are  avoided 468 

(3)  Home  rule  in  rural  districts 469 

(4)  Types  of  local  government 470 

Town  government : 

(i)  The  New  England  town, 

a.  Historic  changes  in 471 

b.  The  town  meeting  .        .        .        .        t        ■    472 

c.  Town  officials         ....«•.    473 
(2)  Other  towns, 

a.  The  New  York  town      ......    474 

b.  The  township  in  the  West      .....    475 


Topical  Analysis  xxxix 

3.  County  government :  section 

(i)  The  New  England  county 476 

(2)  The  Southern  county     . 477 

(3)  The  county  in  general, 

a.  The  county  board 478 

b.  Chief  officials 475 

c.  Other  officials 480 

(4)  Incorporated  villages 481 

4.  Functions  of  local  government : 

(i)  General 482 

(2)  Public  charities, 

a.  Private  and  public  charity 483 

b.  State  boards  of  charities 484 

c.  I^cal  charities, 

(a)  The  almshouse 485 

{b')  Other  local  charities 486 

(3)  The  rural  roads 487 

CHAPTER  XXI 

The  Municipality.    §§  488-515 

1.  General: 

(i)  Some  problems  of  the  city 488 

(2)  Development  of  municipal  government ....  489 

(3)  The  twofold  functions  of  the  city 490 

(4)  The  charter, 

a.  How  prepared 49 1 

b.  Reform  in  charter  making 492 

2.  Government : 

(i)  The  council, 

a.  Organization 493 

b.  Powers 494 

(2)  Administrative  organization, 

a.  The  mayor 495 

b.  Other  elected  officials 496 

c.  Departments, 

{a)  General  organization 497 

{F)  Police,  fire,  and  school  departments      .        .  498 

d.  The  civil  service 499 

(3)  Municipal  courts 500 

3.  Functions  and  finance : 

(1)  Two  sets  of  functions 50I 

(2)  Administrative  functions, 

a.  Care  and  protection  of  the  streets  ....  502 


Topical  Analysis 

SECTION 

b.  Police  regulations 503 

c.  Miscellaneous  functions 504 

(3)  Industrial  functions, 

a.  Water  supply 505 

b.  Gas  and  electric  lighting 506 

c.  Miscellaneous  business  enterprises          .         .         .  507 

(4)  The  granting  of  franchises 508 

(5)  Finance, 

a.  Sources  of  revenue 509 

b.  Items  of  expense 510 

c.  Municipal  debts 511 

Municipal  reform  through 

(1)  Restriction  of  the  suffrage 5 12 

(2)  Awakened  popular  interest 513 

(3)  Separation  of  state  and  city  elections      .        .        .         '514 

(4)  Municipal  home  rule 515 


PART   III 

POLICIES  AND  PROBLEMS 
CHAPTER  XXII 

Suffrage  and  Elections.    §§  516-531 

The  suffrage : 
(i)  Historical  changes  in  the  suffrage 516 

(2)  The  suffrage  at  present, 

a.  Citizenship  and  residence 517 

b.  Special  restrictions 518 

(3)  Woman  suffrage 519 

Control  of  elections : 

(i)  Improved  means  of  ascertaining  the  popular  will    .        .     520 

(2)  Preelection  requirements 521 

(3)  The  ballot, 

a.  History 522 

b.  Ballot  reform 523 

c.  Polling  the  votes 524 

(4)  "  Corrupt  practices "  acts 525 

Proportional  representation : 

(1)  Plans  actually  used 526 

(2)  Suggested  improvements 527 


Topical  Analysis  xli 

4.   Direct  legislation :  sbctiom 

(i)  Methods, 

a.  The  referendum 528 

b.  The  initiative 529 

(2)  Results, 

a.  Advantages 530 

b.  Disadvantages 531 

CHAPTER  XXIII 
The  Political  Party.    §§  532-553 

The  place  of  the  political  party  in  our  political  system  .        .     53a 

1.  History  of  political  parties : 

(i)  The  earliest  parties, 

a.  The  Federalists 533 

b.  The  Democratic- Republicans         ....     534 

(2)  The  middle  period, 

a.  The  Democratic  party  (1824-1852)         .        .        .     535 

b.  The  Whigs 536 

(3)  Recent  parties, 

a.  The  second  reorganization  (1852-1860)         .        .     537 

b.  The  parties  since  i860 538 

c.  Recent  presidential  campaigns, 

(a)  The  tariff  campaigns 539 

(J>)  The  campaigns  of  1896  and  1900  .        .     540 

2.  Organization  and  work : 

(i)  The  work  of  a  party 541 

(2)  The  permanent  committees, 

a.  General 542 

b.  The  national  committee 543 

c.  State  and  local  committees 544 

d.  The  boss  and  the  machine 545 

(3)  The  nominating  system, 

a.  The  national  convention, 

(a)  Composition  and  organization       .        .        .     546 
(J))  The  platform  and  the  nominees    .        .        -547 

*.  State  and  local  conventions 54^ 

c.  The  primary 549 

3.  Control  of  parties  and  reform  of  methods  : 

(i)  The  primary, 

a.  Reform  of 55° 

b.  Public  control  of    .        . 55^ 

(2)  Nominations, 

a.  Importance  of 55* 

b.  Direct  nominations 553 


xlii  Topical  Analysis 


CHAPTER  XXIV 

Constitutional  and  Legal  Rights.    §§  554-573 

Introduction :  section 

(i)  The  bills  of  right  in  history  and  law       ....  554 

(2)  Classification  of  legal  rights 555 

I.   Rights  guaranteed  by  the  United  States  Constitution : 

(i)  General 556 

(2)  Against  all  government 557 

(3)  Against  the  national  government  in  respect  to 

a.  Freedom  of  speech  and  of  religion         .        .        .  558 

b.  Personal  security 559 

c.  Other  matters 560 

(4)  Against  the  state  governments, 

a.  By  prohibiting  laws  impairing  the  obligation  of 

contracts 561 

b.  By  guaranteeing  protection  through  "  due  process 

of  law  " 562 

3.  Rights  guaranteed  by  the  state  constitutions  and  laws : 

(i)  The  state  bills  of  rights 563 

(2)  Against  the  state  governments  in  respect  to 

a.  Religious  freedom 564 

b.  Freedom  of  speech  and  the  press  ....  565 

c.  Private  property 566 

d.  Rights  of  a  person  accused  of  crime       .        .        .  567 

(3)  Rights  protected  under  the  laws  and  codes, 

a.  Under  the  penal  codes 568 

b.  In  suits  at  law  or  in  equity 569 

c.  Homestead  exemption  laws 570 

3.   Rights  secured  through  trial  by  jury : 

(i)  Extensive  use  of  the  system 571 

(2)  Results  of  the  system, 

a.  Advantages 572 

b.  Disadvantages 573 

CHAPTER  XXV 

Taxation.    §§  574-592 
I.    Introductory: 

(i)  The  question  of  taxation 574 

(2)  Characteristics  of  a  good  tax 575 

(3)  Tax  terms 576 

(4)  Tlie  cost  of  government 577 


Topical  Analysis  jdltf 

National  taxes :  sbctiom 

(1)  The  national  tax  system 578 

(2)  History  of  national  taxes        ......  579 

(3)  Operation  of  custom  duties 580 

(4)  Internal  revenue  system, 

a.  Ordinary  internal  taxes 581 

b.  History  of  internal  revenue  taxation       .        .        .  582 

c.  Income  taxes 583 

(5)  Other  national  taxes 584 

(6)  Administration  of  national  taxes 585 

State  and  local  taxes 586 

(1)  The  general  property  tax, 

a.  Its  character 587 

b.  DifBculties  in  assessment 588 

c.  Defects 589 

d.  Equalization 590 

(2)  Corporation  taxes 59 1 

(3)  Special  assessments 592 

CHAPTER  XXVI 

Money.    §§  593-604 

The  two  functions  of  money 593' 

Monometallism  and  bimetallism : 

(i)  Government  and  the  money  system        ....  594 

(2)  Bimetallism, 

a.  Effect  of  bimetallism 595 

b.  Its  advantages  and  disadvantages  ....  596 

(3)  Monometallism 597 

History  of  money  in  the  United  States : 

(1)  The  money  standard, 

a.  From  1792  to  1870 598 

b.  From  1870  to  1900 599 

(2)  Paper  money, 

a.  In  our  early  history 600 

b.  Treasury  notes  since  i860 601 

c.  National  bank  notes 602 

(3)  The  Act  of  1900 603 

(4)  Present  forms  of  money         ......  604 


xliv  Topical  Analysis 

CHAPTER  XXVII 

Trade  and  Industry.    §§  605-621 

tscnoif 
Government,  trade  and  industry 605 

1.  The  tariff: 

(i)  Two  views  regarding  the  purpose  of  the  tariff, 

a.  Free  trade 606 

b.  Protection 607 

(2)  Our  tariff  history, 

a.  Our  early  tariffs 608 

b.  Development  of  a  highly  protective  tariff       .        .  609 

c.  Recent  tariffs 610 

2.  Control  of  domestic  commerce : 

(1)  General 6ll 

(2)  The  beginnings  of  state  control 612 

(3)  The  Interstate  Commerce  Commission    .         .        .         .613 

(4)  State  railway  regulation 614 

3.  Regulation  of  industry : 

(i)  Restraint  of  industry  in  the  past 615 

(2)  Corporation  control  of  the  present  ....  616 

(3)  The  evolution  of  trusts 617 

(4)  Control  of  trusts 618 

4.  Labor  legislation : 

(i)  Historical 619 

(2)  Protection  of  the  employee  to-day  ....    620 

(3)  Attitude  of  government  toward  labor  disputes        .        .     621 

CHAPTER  XXVIII 

Foreign  Affairs  and  Colonies.    §§  622-630 

Increased  importance  of  foreign  affairs 622 

I.   Some  chapters  of  American  diplomatic  history : 

(i)  The  treaty  of  1783 623 

(2)  The  diplomacy  of  the  Civil  War 624 

(3)  The  Monroe  Doctrine, 

a.  Some  early  applications 625 

b.  In  recent  history 626 

(4)  Efforts  made  to  protect  neutral  rights    ....  627 
3.  The  government  of  colonies : 

(1)  Our  experience  with  colonies 628 

(2)  Problems  of  organizing  colonial  governments         .         .     629 

(3)  Problems  of  colonial  control 630 


Topical  Analysis  xlv 


CHAPTER  XXIX 

The  Duties  of  Citizenship.    §§  631-636 

The  twin  virtues  of  citizenship :  sbctiom 

(i)  Knowledge  and  action 631 

(2)  The  knowledge  that  makes  for  good  citizenship     .        .  632 

(3)  Knowledge  and  action  as  twin  virtues    ....  633 
Application  of  the  twin  virtues : 

(1)  Analogies  from  experience 634 

(2)  The  injustice  of  pessimism 635 

(3)  Patriotism 636 


APPENDICES 

PACB 

A.  The  Articles  of  Confederation 533 

B.  The  Constitution  of  the  United  States      .        .        .  542 

C.  Prominent  National  Officials 560' 

D.  The  States  —  Area  and  Population      ....  562 

E.  The  State  Constitutions 564 

F.  The  Suffrage 572 

G.  The  State  Governments 582 


THE 
AMERICAN  FEDERAL  STATE 

CHAPTER   I 

SOME  ELEMENTS  OF  POLITICS 
Oeneral  References 

Hinsdale,  American  Government.     Introduction.    A  good  summary. 

Vi'iViOM^hy,  Rights  and  Duties  of  American  Citizenship.  Parti.  An 
excellent  elementary  discussion. 

Wilson,  The  State.  Historical  and  comparative  accounts  of  ancient 
and  modern  States.     Very  useful. 

Bluntschli,  Theory  of  the  Modern  State.  The  best  book  covering  the 
whole  subject. 

Crane  and  Moses,  Politics. 

Burgess,  Political  Science  and  Comparative  Constitutional  Law.  2  vol- 
umes.   Very  valuable. 

Woolsey,  Political  Science.     2  volumes. 

Pollock,  Introduction  to  the  History  of  the  Science  of  Polities. 

Sidgwick,  Elements  of  Politics. 

Willoughby,  An  Examination  of  the  Nature  of  the  State. 

Smith,  Theory  of  the  State. 

Lieber,  Civil  Liberty  and  Self  Government. 

McKechnie,  The  State  and  the  Individual. 

Goodnow,  Comparative  Administrative  Latv.     2  volumes. 

Lalor,  Cyclopedia  of  Political  Science,  under  the  different  subjects 
treated. 

I .   Development  of  Political  Societies.  —  Since  the  earli-  From  small 
est  historical  periods  men  have  been  accustomed  to  associ-  ^""p'^  *^°™' 

^  munities  to 

ate  with  one  another.     At  the  first  there  would  be  only  a  large  com- 

few  who,  because  they  were  related  by  blood  or  lived  near  P'^''  °"^^- 

each  other,  felt  they  were  bound  together  on  account  of 

B  I 


2  The  American  Federal  State 

common  interests  and  usually  to  avoid  common  dangers. 
In  these  primitive  little  societies  there  was  ordinarily  some 
one  man  who  was  looked  upon  as  leader.  Sometimes  it  was 
his  age,  sometimes  his  position  by  birth,  and  often  his  selec- 
tion by  his  fellows  that  made  him  the  head  man,  but  in 
every  case  the  members  of  the  society  felt  bound  to  treat 
him  with  respect  and  obey  his  commands.  But  they  were 
also  bound  to  one  another  and  realized  that  each  one  owed 
something  to  every  other  because  they  were  members  of 
the  same  society.  As  these  societies  gradually  became  more 
settled,  they  began  to  have  different  and  wider  interests.  In 
time  this  led  to  the  union  of  several  of  the  smaller  societies 
in  one  large  one,  or  in  the  absorption  of  several  by  the  most 
powerful.  Gradually  families  became  clans,  clans  became 
tribes,  and  tribes  became  races,  each  with  a  government  of 
its  own.  Everywhere  the  process  was  going  on,  the  organiza- 
tion of  the  society  becoming  more  perfect  as  the  members 
became  more  civilized.  With  increase  of  population  it  was 
necessary  to  mark  off  the  territorial  limits  that  should  sepa- 
rate one  people  from  another.  These  boundaries  tended 
to  become  more  or  less  permanent,  and  the  government  as 
well  became  less  subject  to  change.  What  changes  occurred 
were  due  to  the  union  or  incorporation  of  these  smaller 
poHtical  societies  into  larger  ones  till  great  nations  were 
formed. 
Scientific  use  2.  Definitions  of  the  State.  —  In  modem  times  it  has 
of  the  word  been  customary  to  call  certain  of  these  political  societies 
States.  This  name  applies  to  any  body  of  people  occupy- 
Burgess,  Pol.  i^^g  ^  fairly  definite  territory  with  an  organized  government, 
Science,  I,  who  are  in  no  essential  subject  to  any  outside  power.  Or 
49-57-  ^g  j^^y  py^  jj  briefly,  and  say  that  a  State  is  an  independent 

Bluntschii,       political  society.    In  this  sense,  it  would  be  incorrect  to  speak 
Theory  of  the  of  the  State  of  Ncw  York  or  Ohio ;  for  while  these  "  states  " 
''  are  without  question  political  societies,  a  great  many  interests 

of  their  members  are  cared  for  by  a  government  outside  the 

"state"  or  commonwealth.     On  this  account,  we  must  be 
The  two  uses  r  i  t       i  •     ,       i        i 

in  this  book    careful  not  to  confuse  the  two  uses.     In  this  book,  when  a 


Some  Elements  of  Politics  3 

real  State  is  meant,  the  word  will  be  capitalized  and  used 

as  much  as  possible  in  the  singular,  when  a  "  state  "  like 

Massachusetts  is  spoken  of,  no  capital  will  be  employed,  and 

the  plural  will  be  used. 

3.    The  Nation. — The  word  nation  is  frequently  used  as   Distinction 

synonymous  with  State,  but  it  really  expresses  a  different  '^^*^^^"  '||® 
•'         '  '  J         r  nation  and 

idea.     In  a  broad  sense,  a  nation  includes  all  of  the  people  the  state. 

of  any  race.    For  example,  the  German  nation  in  that  sense  Hinsdale 

includes  not  only  the  Germans  living  in  the  German  empire,  §  9. 

but  all  other  Germans  in  the  neighboring  States.     But  nation  Burgess,  Pol. 

is  more  commonly  used  in  a  limited  sense.     In  that  case,  Science,  i, 

the  nation  is  the  body  of  people  having  a  common  origin  ~^' 

and  living  under  a  single  government  within  a  definite  terri-   Biuntschii, 

.  ,.  r^j  ,^,.  ,  .  ,.    iiid.,  86-109. 

tory.     As  used  m  a  broad  sense,  the  English  nation  would 

include  all  people  of  English  blood  anywhere  on  the  globe,  ^^^^  ^^,- 
but  as  used  in  the  narrower  sense,  we  may  have  an  American  tics,  chap.  ii. 
nation  as  well.  What,  then,  is  the  difference  between  a 
modern  State  and  the  nation  (using  the  word  with  limited 
meaning)  ?  It  is  this.  The  State  is  a  political  organization  ; 
while  the  nation  is  a  body  of  people  belonging  to  the  same  race, 
with  practically  the  same  ideas  and  interests.  The  modern 
State,  it  is  true,  is  an  organization  of  the  whole  people  of  a 
territory  for  poHtical  purposes,  but  the  people  do  not  neces- 
sarily form  a  nation.  The  population  of  almost  every  coun- 
try at  the  present  time  is  made  up  of  different  race  elements, 
and  until  these  have  been  united,  there  can  be  no  nation. 
But  even  after  this  occurs,  we  may  not  be  able  to  speak 
with  accuracy  of  the  nationality  of  the  people  composing  a 
State.  So  long  as  any  locality  or  any  section  is  more  impor- 
tant to  its  inhabitants  than  the  State  as  a  whole,  so  long  as 
local  or  sectional  interests  predominate  in  one  part  of  a 
country,  perfect  nationality  is  lacking  —  the  nation  is  yet  in  the 
process  of  formation.  For  this  reason  we  can  realize  with- 
out difficulty  that  while  modern  States  are  usually  nation 
states,  the  State  has  as  a  rule  been  developed  earlier  than 
the  nation. 

4.   Theories  concerning  the  Origin  of  the  State.  —  Men 


The  American  Federal  State 


Three 

theories:  of 
divine  right, 
the  contract, 
and  the 
historical. 

Hinsdale, 
{§  12-16. 

Wilson,  The 
State,  §§  14- 
az. 


TTie  earliest 

modern 

theory. 

Woolsey, 
Pol.  Science, 
1, 196. 

Bluntschli, 
ibid.,  a86- 
292. 

Origin  and 
practical 
failure  of  the 
contract 
theory. 


have  spent  a  great  deal  of  time  discussing  the  probable  origin 
of  the  State,  and  in  trying  to  find  out  how  States  are  really 
formed  now.  They  have  usually  accounted  for  it  in  one  of 
three  ways :  — 

( 1 )  That  the  State  is  a  divine  creation,  and  that  the  sov- 
ereign rules  by  divine  right. 

(2)  That  when  people  became  tired  of  living  in  a  state  of 
anarchy  without  government,  they  came  together  and  made 
an  agreement  or  contract  to  hve  with  one  another  under 
such  a  government  as  seemed  best  to  them. 

(3)  That  there  has  never  been  a  time  when  men  have 
been  without  some  kind  of  a  government.  That  ages  ago 
when  a  child  was  born,  it  came  into  a  society  already  exist- 
ing, that  the  government  was  not  a  human  but  a  natural 
institution  not  greatly  affected  by  the  wishes  of  men.  The 
second  theory  emphasized  the  artificial  character  of  the  State, 
the  third  the  natural;  the  one  stated  that  the  intelligence 
of  man  was  the  determining  factor  in  forming  the  State,  the 
other  that  the  State  is  the  product  of  natural  forces,  of  which 
man  is  one,  and  of  natural  conditions.  These  three  theories 
have  exerted  considerable  influence  upon  the  history  of 
States  during  the  last  three  hundred  years,  and  the  truth  of 
each,  so  far  as  they  explain  the  character  of  States  to-day 
rather  than  their  origin,  can  be  best  shown  by  briefly  stating 
their  history. 

5.  The  Theory  of  Divine  Right. — The  theory  that  exerted 
the  greatest  influence  at  the  beginning  of  the  modern  period 
was  that  monarchs  ruled  by  divine  right.  It  was  really  an 
outgrowth  of  the  mediaeval  idea  of  the  interdependence  of 
the  church  and  the  State,  and  the  sacredness  of  the  office 
occupied  by  the  head  of  each.  It  was  used  by  its  advocates 
to  uphold  the  most  absolute  government  of  the  monarch  as 
late  as  the  beginning  of  the  eighteenth  century. 

6.  The  Contract  Theory.  —  As  ecclesiasticism  began  to 
lose  its  hold  on  the  people,  the  supporters  of  absolute  mon- 
archy looked  about  for  a  firmer  basis  upon  which  to  rest 
their  doctrine.    They  found  this  in  the  idea  of  the  contract, 


Some  Elements  of  Politics  5 

claiming  that  when  men  became  tired  of  living  in  a  state  of  Burgess, 
anarchy,  they  came  together  and  formally  entered  into  a  '  '  ''   '   ^* 
contract  with  one  another  and  with  some  powerful  person   Biuntschli, 
as  ruler  to  establish  a  government  strong  enough  to  protect  '^ ''  ^^~ 
them.    These  theorists  were  in  time,  however,  hoist  on  their 

^Voolscv 

own  petard.     For  about  the  middle  of  the  eighteenth  cen-   ibid.,\,\<ja. 
tury  there  arose  a  school  of  writers  of  whom  Rousseau  was   i9S.  i97- 
the  leader,  which  reasoned  that  the  originators  of  the  con-   Paignon  in 
tract  had  estabhshed  not  an  absolute  but  a  popular  govern-  Laior,  in, 
ment,  that  later  the  rulers  had  seized  powers  not  intrusted  ^^^"^^  * 
to  them,  and  that  the  people  had  the  right  to  rid  themselves 
of  the  usurpers.     This  gave  them  a  resting-place  for  the 
Archimedean  lever  which  overthrew  many  established  gov- 
ernments in  the  old  world  and  the  new  during  the  latter 
part  of  the  eighteenth  century.     When,  however,  they  tried 
to  put  these  principles  into  practice,  difficulties  were  encoun- 
tered.   Instead  of  being  able  to  establish  such  a  government 
as  men  desired,  they  found  themselves  obliged  to  organize 
such  a  government  as  they  could.     The  paper  constitutions 
that  France  tried  just  before  the  opening  of  the  nineteenth 
century  proved  the  futility  of  making  any  other  government 
than  one  based  on  the  political  experience  of  that  State. 
The  truth  that  lay  in  the  contract  theory  was  no  more  than 
this, —  men  may  modify  what  already  exists  and  change  it  so 
that  it  is  better  adapted  to  existing  conditions. 

7.    Natural   or   Historical   Theory.  —  The  failure  of  the  The  theory 
contract  theory  in  practice  led  people  to  revise  their  ideas. 
It  was  seen  that  in  all  history  societies  and  States  have  been  Biuntschli, 
formed  not  by  the  contract  of  its  members,  but  by  growth  *  '   '  °^ 
according  to  natural  laws.     That  when  these  societies  are 
formed,  they  have  everywhere  grown  out  of  previous  socie- 
ties.   That  when  a  government  is  formed  the  character  of 
that  government  is  determined  far  more  by  the  character 
of  the  previous  governments  of  the  State  than  by  political 
theories.    This  is  clearly  seen  in  our  own  history.    At  the  ^"^  '''"^^ 

,    -    ,       ,  .       .  ,       .  trated  by 

time  our  state  and  federal  constitutions  were  made,  it  was  American 

found  that  only  those  parts  of  the  government  worked  well  experience. 


Tke  American  Federal  State 


Social  oblU 
gations 
natural  and 
inevitable. 


which  were  not  very  different  from  similar  devices  used  in 
the  colonies.  The  government  adopted  (in  1 787-1 789)  by 
the  United  States  was  a  federal  instead  of  a  confederate  or 
national  government,  because  neither  a  confederate  nor  na- 
tional government  was  suited  to  the  conditions ;  and  either 
if  tried  must  have  failed.  Confederate  government  had 
been  outgrown  by  the  people ;  but  they  were  not  ready  for 
a  purely  national  one.  The  political  conditions  prescribed 
the  limits  beyond  which  it  was  useless  to  go ;  but  within 
these  limits  political  intelligence  held  full  sway. 

8.  Natural  Theory  and  Social  Duties.  —  A  great  many 
who  favored  the  contract  theory  of  the  State  believed  that 
the  society  was  largely  a  natural  growth.  It  is  needless  to 
say  that  those  who  hold  the  natural  theory  of  the  State  are 
much  more  inclined  to  look  upon  society  as  an  organism. 
This  tendency  has  been  greatly  strengthened  during  recent 
years  by  the  vast  increase  of  our  knowledge  concerning  the 
processes  of  growth  in  plants  and  animals  and  the  applica- 
tion of  the  laws  discovered  to  societies  and  States.  It  has 
therefore  become  quite  customary  to  consider  the  State  an 
organism,  subject  to  laws  of  growth  and  decay  and  com- 
posed of  parts  which  cannot  be  separated  from  the  organism 
without  causing  the  death  of  both.  While  we  must  be  care- 
ful not  to  carry  the  analogy  too  far,  there  is  unquestionably 
a  great  deal  of  truth  in  it.  For  instance,  it  gives  us  a  very 
different  conception  of  the  social  duties  of  the  members  of 
the  State  from  that  we  should  obtain  if  we  believed  the  State 
was  formed  by  contract.  The  member  is  a  part  of  society 
not  because  he  wills  it,  but  because  he  was  born  into  it.  He 
may  choose  within  certain  limits  in  what  State  he  will  live, 
but  he  must  live  in  some  State.  If  he  separates  himself 
from  one  State  without  becoming  a  member  of  another,  the 
first  State  protects  him  wherever  he  goes,  and  to  that  State 
he  is  responsible  for  his  conduct.  But  he  cannot  become  a 
"  stateless  man."  He  may  shirk  and  refuse  to  perform  his 
social  duties,  but  he  cannot  get  away  from  his  obligations  to 
his  fellows ;  and,  if  his  refusal  to  perform  those  social  duties 


Some  Elements  of  Politics  7 

injures  the  society  of  which  he  is  a  member,  the  society, 
through  the  government  of  its  State,  will  protect  itself  by 
punishing  him. 

9.  The  Kinds  of  States.  —  Theoretically  considered,  the  Classified 
best  classification  of  States  is  according  to  the  location  of  fhe°oca'tU)n' 
the  sovereign  or  supreme  power  of  the  State  which  compels  of  sov- 
everything  else  in  the  State  to  obey  it.     If  sovereignty  re-  ^'^'^'snty. 
sides  in  a  single  individual,  we  call  the  State  a  monarchy.  Biuntschii, 
If  a  class  of  persons  limited  in  number  have  the  power  to  «<*'''•. 338-342. 
exact  obedience  to  their  wishes,  it  is  an  aristocracy.     When  Burgess, 
the  whole  people  organized  to  form  the  State  are  sovereign,  "^*''-.  1.68-82. 
it  is  a  democracy. 

10.  Historical  Forms  of  States.  —  History,  however,  fur-  Ancient  and 
nishes  us  with  a  very  different  classification  based  upon  no  j^jates. 
real  principles.     The  earliest  States  produced  in  ancient 

times  grew  up  with  the  city  as  its  centre.  The  most  perfect  Biuntschii, 
examples  of  the  City  State  were  furnished  by  Greece.  In  iv,  chaps. 
Rome  the  idea  of  the  city  State  grew  into  the  World  State,  li-iv. 
but  with  the  city  at  the  centre.  During  mediaeval  times 
such  States  as  existed  were  Feudal  States,  in  which  the 
territorial  subdivisions  were  bound  to  the  head  of  the  State 
by  feudal  ties  by  no  means  strong.  The  last  few  centuries 
have  witnessed  the  rise  of  Nation  States.  All  of  the  mem- 
bers belong  to  practically  the  same  race,  and  include  most 
of  the  persons  of  that  race.  The  unification  of  feudal  States 
whose  people  belonged  to  any  one  race  began  in  the 
fifteenth  century  with  the  nationalization  of  France  and  Spain, 
and  has  been  practically  completed  in  our  own  day  by  the  con- 
solidation of  Italy  and  Germany.  In  certain  cases,  complete 
unification  under  an  absolute  central  government  was  impos- 
sible. Then  the  old  confederacy  was  replaced  by  a  nation 
State  of  a  peculiar  form,  called  the  Federal  State. 

11.  Federal  States  and  Confederacies.  —  We  must  be  care- 
ful to  distinguish  between  Federal  States  and  Confederacies.  The  location 
Both  of  these  have  a  central  government  and  local  gov-  °i_n°yYn 
ernments,  each  of  which  exercises  certain  powers  of  sov-  each, 
ereignty ;  but  there  is  a  very  great  difference  between  them. 


8 


The  American  Federal  State 


Wilson,  The 
State, 
^  1372- 
1379. 

Sidgwick, 

Politics, 

512-516. 


Definition 
and  expla- 
nation. 

Crane  and 

Moses, 

Politics, 

chaps. 

XVII-XVIII. 


Robinson  in 
A.A.A.,\\\ 

(1893).  785- 
808. 

Sidgwick, 
iiid.,yyj-si.2. 


If  we  have  a  single  sovereign  which  says  what  powers  each 
government  shall  exercise,  we  have  a  single  State,  a  Federal 
State,  or,  as  the  Germans  say,  a  Bundesstaat.  If,  however, 
sovereignty  rests  not  in  the  large  territory  but  in  the  smaller 
territorial  divisions,  we  have  many  sovereignties,  therefore 
ma7iy  States,  or  a  confederacy,  a  Staatenbund.  In  other 
words,  a  confederacy  is  a  union  of  States,  and  the  central 
government  is  nothing  more  than  the  agent  of  those  States, 
while  in  a  Federal  State  there  is  a  real  central  or  united 
State,  as  well  as  a  central  government.  In  the  same  way 
we  must  be  careful  not  to  be  confused  when  we  have  what 
is  called  a  personal  union  —  here  we  have  one  monarch  for 
two  countries,  each  with  its  own  complete  system  of  govern- 
ment. In  that  case  we  have  two  States,  as,  for  instance,  in 
England  and  Scotland  between  1603  and  1707,  or  in  the 
Austro-Hungarian  monarchy  to-day. 

12.  The  Federal  State.  —  It  is  not  easy  to  define  the 
Federal  State  so  as  to  distinguish  it  from  the  ordinary  cen- 
tralized Nation  State.  It  is  not  enough  to  say,  as  many 
authors  do,  that  the  sovereign  delegates  the  exercise  of 
certain  powers  to  the  central  government  and  of  certain 
other  powers  to  the  local  governments.  That  is  too  vague. 
We  can  perhaps  get  a  clearer  idea  from  this  explanation. 
In  a  Federal  State  there  are  two  spheres  of  government : 
that  left  to  the  central  government  and  that  left  to  the  local 
governments.  The  boundary  between  these  spheres  is  fairly 
definite ;  and,  by  law  and  custom,  fairly  permanent ;  but  it 
may  be  altered  by  the  people  of  the  whole  State,  who  may 
also  place  certain  sovereign  powers  outside  either  sphere  of 
government.  Until  this  boundary  is  changed,  however,  all 
matters  within  the  sphere  of  the  local  governments  are  com- 
pletely under  the  control  of  the  people  of  the  localities.  In 
any  case,  the  regulation  of  all  matters  of  common  concern 
belongs  to  the  people  of  the  whole  State,  who,  by  virtue  of 
their  power  to  alter  the  boundary  between  these  two  spheres 
of  government  {i.e.  of  changing  the  real  constitution),  are 
sovereign. 


Some  Elements  of  Politics  9 

13.  Characteristics   of   Modem   States.  —  Attention  has  Democratic 
already  been  called  to  the  most  marked  characteristics  of  undeTwfuen 
modern  States,  namely,  that  each  State  represents  a  nation  constitutions, 
organized  for  political  purposes.     In  the  organization  we 

have  usually  not  only  a  government  but  a  constitution  by   §§  1398^1414.' 
which  the  State  places  limitations  upon  the  government. 
Ordinarily,   sovereignty   rests   with    the   people   who    rule   Book  I, 
through  the  exercise  of  popular  influence  and  through  the  chaps.  I-VI. 
principle  of  representation.     That  is  only  another  way  of 
saying  that  modem  States  are  usually  democratic.     This 
democracy  has  been  of  late  growth,  even  in  this  country, 
and  is  very  imperfectly  developed,  especially  on  the  con- 
tinent of  Europe. 

In  no  way  does  the  State  of  to-day  differ  more  from  those  The  citizen 

of  the  past  than  in  its  relation  to  its  members.     In  the  '"^"^lent 

'^  and  modern 

ancient  State  only  the  privileged  few  were  citizens,  while  states. 

a  vast  majority  were  not  even  in  the  position  of  subjects 
without  citizenship  —  they  were  slaves.  Yet  the  citizen  was 
never  more  than  a  part  of  the  machine.  He  lived  for  the 
State,  which  absorbed  him  and  controlled  him.  It  was  only 
later  that  the  citizen  was  really  recognized  to  be  an  individ- 
ual. In  modern  times  the  right  of  individuality  as  well  as 
that  of  citizenship  is  admitted.  The  citizen  is  a  part  of  the 
organism  called  the  State.  Under  normal  conditions,  he 
cannot  place  himself  out  of  relation  to  his  fellow-citizens ; 
but  unless  his  right  to  life,  liberty,  and  property  interfere 
with  similar  rights  in  society  at  large,  they  are  not  denied  to 
him.  In  other  words,  the  modem  society  realizes  that  the 
interests  of  the  individual  and  the  State  are  not  necessarily 
identical,  but  allows  each  free  scope  except  where  their 
interests  clash,  then  the  individual  must  yield. 

14.  Sovereignty.  —  We  have  already  seen  that  sovereignty  characteris- 

resides  in  the  person  or  persons  in  the  State  who  have  the  '■"  '•  suprem- 
acy and 
power  to  exact  continued  obedience  from  all  other  parts  of   indivisibihty. 

the  State.     Its  most  important  characteristics  are  :   (i)  it  is   „.    .  , 

supreme  within  the  boundaries  of  the  State ;  if  not,  it  is   §  n. 

inferior  to  some  other  power  and  that  power  is  sovereign. 


10 


The  American  Federal  State 


Burgess 
ibid., 
I.  53-56. 


Powers  of 
sovereignty. 


In  law  and  in 

American 

history. 


Cf.  Lowell, 
Essays  on 
Govt.,  189- 
aaa. 


The  constitu- 
tion in  gen- 
eral. 


(2)  It  is  "  one  and  indivisible."  There  cannot  be  two 
supreme  powers  in  one  State.  We  may,  Iiowever,  find  two 
parts  of  the  State  struggling  for  recognition  as  the  sovereign, 
when  it  is  practically  impossible  to  determine  for  the  time 
which  is  sovereign.  If  we  accept  such  a  solution  for  a  large 
part  of  our  early  history,  some  difficulties  disappear. 

The  more  important  powers  of  sovereignty  are :  ( i )  making 
and  altering  the  constitution  of  the  State,  which  includes 
{a)  determining  the  form  and  the  real  powers  of  the  gov- 
ernments, and  {b)  determining  the  relation  of  the  citizens  to 
the  government  and  to  the  State ;  and  (2)  delegating  to  the 
different  governments  in  the  State  the  powers  dealing  with 
internal  and  foreign  affairs  to  be  exercised  by  each.  While 
it  is  expected  that  this  delegation  of  powers  is  more  or  less 
permanent,  it  is  always  subject  to  change  through  the  right 
of  the  sovereign  to  alter  the  constitution.  It  is  thus  seen 
that  the  sovereign  is  the  real  power  of  the  State,  that  it  is 
above  the  governments  creating  and  controlling  them,  and 
that  to  it  the  governments  are  responsible.  It  may  never- 
theless be  a  part  of  one  of  the  governments. 

1 5 .  Disputes  over  Sovereignty.  —  The  idea  of  sovereignty  has 
been  a  cause  of  dispute  since  the  term  was  first  used.  These  disputes 
have  unfortunately  been  both  legal  and  political  in  their  character, 
and  great  state  questions  have  been  fought  out  by  the  advocates  of 
different  schools.  In  our  own  history  the  question  was  the  location 
of  sovereignty  in  the  people  of  the  nation  or  the  people  of  the  States. 
As  Professor  Johnston  well  said,  "The  word  people  has  been  the 
political  *■  of  American  history."  The  classical  contention  that 
sovereignty  is  unlimited,  one  and  indivisible,  has  been  assailed  from 
many  quarters.  So  high  an  authority  as  Professor  Bluntschli  denies 
that  it  is  unlimited,  and  the  fact  that  it  is  impossible  to  find  a  case  in 
history  where  the  sovereign  power  has  been  used  entirely  without 
limitations  makes  it  advisable  to  substitute  the  word  supreme  for  the 
word  unlimited.  That  sovereignty  is  "  one  and  indivisible  "  still  meets 
the  approval  of  the  best  writers,  but  some  attempts  have  been  made 
to  prove  the  possibility  of  a  dual  sovereignty. 

16.  Written  and  Unwritten  Constitutions.  —  Every  civil- 
ized State  has  some  kind  of  a  fairly  definite  political  organiza- 


Some  Elements  of  Politics  II 

tion.  The  character  of  that  organization,  including  the  relation 

of  the  State  to  its  subdivisions  and  its  citizens,  the  form  and 

powers  of  government,  and  the  relation  of  the  government  Sidgwick, 

to  the  citizens,  may  be  embodied  in  law,  in  custom,  or  in  ^'''''*">  S4o- 

both.     In  any  case  we  may  give  the  name  constitution  to 

those  laws  or  customs  that  determine  the  character  of  the 

State.     But  it  is  customary  to  use  the  word  in  a  much  more 

limited  sense,  and  to  distinguish  between  written  and  un-   Distinction 

written  constitutions.     When  there  is  a  single  fundamental  ^^'^een  writ- 

ten  and  un- 
law or  set  of  laws  that  regulate  either  expressly  or  by  impli-  written. 

cation  the  form  and  powers  of  the  principal  governments, 
the  relation  of  the  State  to  its  subdivisions  and  the  liberty  of 
the  citizens,  we  say  that  the  State  has  a  written  constitution. 
Otherwise  it  is  customary  to  speak  of  the  constitution  as 
unwritten.  It  will  be  readily  seen,  however,  that  no  writ- 
ten constitution  is  likely  to  cover,  even  in  the  most  general 
terms,  all  the  subjects  that  belong  to  a  constitution  proper. 
In  consequence,  every  State  has  an  unwritten  constitution 
whether  it  has  a  written  one  or  not,  although  of  course  that 
unwritten  constitution  is  not  so  important  as  it  would  have 
been  had  no  written  constitution  existed. 

We  may  compare  the  written  constitution  to  the  skeleton 
of  an  animal,  which  within  certain  limits  determines  what 
the  animal  shall  be,  though  it  does  not  tell  us  its  color,  the 
strength  of  its  muscles,  or  much  of  its  real  efficiency.  While 
the  skeleton  remains  the  same,  the  animals  of  that  class 
must  have  many  characteristics  in  common ;  but  the  degree 
of  vitality  the  animal  possesses,  and  the  amount  of  work  it 
can  do,  depends  more  on  its  individuahty. 

This  relation  of  the  written  and  unwritten  constitutions  Relation  of 
to  each  other  may  perhaps  be  made  clearer  by  reference  the  unwritten 
to  the  United  States.     In  the  Constitution  of  1787  and  its  ST*^!'?^'?". 

'     '  of  the  United 

amendments,  the  form  and  powers  of  the  central  govern-   States  to  the 
ment  are  given,  limitations  upon  the  powers  of  the  states 
(commonwealths)   are  enumerated,  and  certain  rights  of 
citizens  are  placed  beyond  governmental  interference.     But      '  *  ^^'^' 
this  written  constitution  only  by  implication  recognizes  the 


written  Con- 
stitution. 


12 


The  American  Federal  State 


Character- 
istics of  a 
modern  con- 
stitution. 


Its  stability. 

Sidgwick, 

Politics, 

535-540- 


existence  of  a  Federal  State,  makes  it  possible  for  the  State 
to  be  controlled  either  by  the  whole  people  or  by  one  class, 
gives  only  the  "  paper  powers  "  of  the  departments  of  the 
government  and  cannot  create  real  power  for  them.  All 
of  these  subjects  and  many  others  belong  to  our  unwritten 
constitution,  and  are  regulated  either  by  statute  law  or  by 
custom.  For  example,  commonwealth  laws  have  recognized 
the  fact  that  the  State  and  the  government  have  become 
democratic ;  custom  has  made  the  presidential  electors  not 
men  of  independent  judgment,  but  parts  of  the  machinery 
of  political  parties.  The  changes  in  the  unwritten  constitu- 
tion are  much  too  numerous  to  be  mentioned  here,  but 
the  general  character  of  the  changes  are  given  in  chapters 
VI-IX. 

If  we  were  to  give  the  most  important  characteristics  of 
a  modern  constitution,  the  following  would  probably  be 
named  :  it  is  made  by  the  people ;  it  gives  the  location 
of  sovereignty ;  it  regulates  the  relation  of  the  State  to  its 
subdivisions  and  its  citizens ;  it  gives  the  form  and  the 
powers  of  the  governments  ;  it  determines  the  rights  of  the 
citizens. 

17.  Advantages  of  a  Written  Constitution.  —  If  all  States 
have  unwritten  constitutions,  we  may  well  ask,  what  is  the 
advantage  of  having  a  written  constitution  in  addition  ?  As 
all  States  are  changing,  a  written  constitution  helps  to  give 
definiteness  and  permanence  to  its  political  institutions. 
It  leaves  less  to  the  government,  which  might  otherwise 
alter  the  constitution  for  its  own  advantage  and  to  the  in- 
jury of  the  State.  The  written  constitution  is  always  a 
proof  of  the  fact  that  sovereignty  no  longer  resides  in  the 
government  but  in  the  people.  The  recent  growth  of  the 
written  constitution  is  undeniably  due  to  the  same  condi- 
tions that  have  produced  modern  democracy.  But  while 
it  protects  democracy,  it  hinders  the  full  application  of 
democratic  ideas  in  the  government.  In  other  words,  the 
great  advantage  of  the  written  constitution,  stability,  is  un- 
avoidably connected  with  the  great  disadvantage,  inflexi- 


Some  Elements  of  Politics  13 

bility.  The  attempt  to  remove  this  disadvantage  by  making 
the  constitution  easily  alterable,  as  in  France,  practically 
destroys  the  real  virtue  of  the  written  constitution.  Yet  it 
must  be  admitted  that  a  written  constitution  of  the  most 
general  kind  that  can  be  changed  with  comparative  ease, 
and  supplemented,  as  it  always  is,  by  an  unwritten  constitu- 
tion that  adapts  itself  to  the  needs  of  the  time,  is  the  best 
form  for  the  ordinary  State. 

18.    Development  of  Government.  —  In  primitive  political  Simplicity 

communities,  the  government  was  of  the  most  rudimentary  °^^^'''y 

'  °  ^    government. 

character.  All  of  the  things  that  needed  attention  were 
cared  for  either  by  a  single  person  or  by  an  assembly  of  the 
men.  The  former  was  something  like  a  permanent  govern-  Wilson,  ibid., 
ment,  because  the  ruler  was  a  permanent  official ;  but  the  '*  ^'^^' 
latter  could  not  be  continually  in  session,  and  if  they  wished 
to  have  anything  done,  they  usually  called  upon  an  individ- 
ual who  did  what  was  asked  and  then  again  became  an 
ordinary  member  of  the  community.  Thus  there  was  no 
permanent  office.  It  was  like  the  characterless  amoeba 
of  which  any  part  may  be  used  at  one  time  for  gathering 
food  and  at  another  for  locomotion. 

But  it  was  the  same  with  political  institutions  as  it  was  Separation 
with  animal  life.  Development  was  from  the  simple  to  the  JJJents^^^"^' 
complex,  until  in  the  highest  forms,  one  organ  performed 
a  certain  function  and  no  other.  As  society  advanced  in 
civilization,  the  need  of  some  permanent  set  of  persons  to 
keep  order,  to  settle  disputes  and  look  after  other  matters, 
was  more  felt.  Here  we  have  the  first  real  governmental 
organization,  but  with  so  little  differentiation  of  duties  that 
any  one  of  these  magistrates  exercised  judicial,  executive, 
administrative,  and  legislative  powers.  Still  further  increase 
of  duties  made  separation  of  these  powers  more  or  less 
necessary,  as  all  could  not  be  performed  by  one  person. 
But  until  the  eighteenth  century  the  confusion  of  these  de- 
partments was  common,  and  the  exercise  of  all  the  govern- 
mental powers  by  European  monarchs  was  the  rule.  With 
the  publication  of  Montesquieu's  Esprit  des  Lois  (1749) 


14 


The  American  Federal  State 


Government 
the  agent  of 
the  State,  but 
both  reflect 
political  and 
social  condi- 
tions. 

Burgess,  Pol. 
Science,  1,68. 

Moses,  De- 
mocracy  and 
Social 
Growth,  19- 
33. 


and  Blackstone's  Commentaries  (1770),  an  effort  was  begun 
to  separate  completely  legislative,  executive,  and  judicial 
functions.  As  progressive  political  societies  believed  this 
separation  essential  to  good  government  and  to  the  preser- 
vation of  liberty,  the  attempt  was  made  both  in  America 
and  in  Europe  to  put  the  principle  into  practice.  The  fact 
has  been  overlooked  that  with  all  organisms  the  increase 
of  the  number  of  organs  has  been  accompanied  by  a  corre- 
sponding dependence  of  each  organ  upon  every  other.  Yet 
the  application  of  this  idea  of  separating  the  departments 
has  undoubtedly  given  us  the  highest  form  of  government 
yet  produced. 

19.  Government  and  the  State.  —  It  must  be  borne  in 
mind  that  government  is  no  more  the  State  than  the  heart 
and  lungs  of  an  animal  are  the  animal  itself.  The  govern- 
ment is  the  chief  set  of  organs  of  the  State  —  the  agent  that 
carries  out  its  will.  But  while  the  government  is  not  the 
State,  the  character  of  the  government  depends  very  much 
on  the  character  of  the  State.  You  cannot  have  the  same 
kind  of  a  government  in  Persia  and  America.  A  democratic 
government  cannot  be  developed  or  maintained  in  any 
society  where  classes  are  distinctly  separated  from  one 
another.  Neither  is  an  aristocratic  government  possible 
where  all  persons  are  on  a  level  —  possess  social  and  ma- 
terial equality.  But  we  can  go  further.  The  State  and  the 
government  grow  up  together.  Because  the  State  is  nothing 
more  than  a  portion  of  society  organized  in  a  particular  way, 
it  is  constantly  changing.  Those  changes  will  naturally  be 
reflected  in  the  government.  Any  change  that  is  made  in 
its  government  which  does  not  represent  a  change  in  the 
State  will  lead  to  one  of  two  results.  Either  it  will  decay 
because  it  is  useless ;  or,  if  it  can  produce  a  corresponding 
change  in  the  State,  it  will  survive.  Yet  we  ought  to  realize 
that  we  can  almost  never  produce  a  change  in  society  by 
a  mere  change  in  the  government.  We  can  then  see  the 
uselessness  if  not  the  folly  of  altering  the  government  with- 
out taking  into  account  the  social  condition  and  the  political 


Some  Elements  of  Politics  1 5 

experience  of  the  people ;  and  we  ought  to  appreciate  the 
fact  that  a  society  changing  as  rapidly  as  ours  in  the  United 
States  is  unlikely  to  have  the  same  kind  of  a  government  in 
different  periods  of  its  national  history. 

20.  Monarchies.  —  Practically  all  the  great  States  of  to-day  Absolute  and 

have  either  a  monarchical  or  a  republican  form  of  govern-  constitutional 

*  °  monarchies, 

ment ;  but  there  is  more  real  difference  between  certain  abso- 
lute and  constitutional  monarchies  than  there  is  between  a  Biuntschii, 
monarchy  like  Great  Britain  and  a  republic  like  France.  '*'*-43i-439. 
The  only  thing  necessary  for  a  monarchical  government  is 
that  its  head  shall  be  an  hereditary  sovereign ;  but  if  the 
powers  of  that  sovereign  are  limited  by  either  a  written  con- 
stitution, or  by  statutes  and  customs  as  binding  as  such  a 
constitution,  the  government  is  really  in  the  hands  of  the 
people's  representatives.  In  the  absence  of  such  limita- 
tions, the  monarchy  is  called  absolute  ;  for  the  power  on  the 
throne  or  behind  it  is  not  within  popular  control. 

21.  Democratic  Government.  —  Of  popular  governments  Pure  and 
there  are  two  forms,  the  pure  democracy,  and  the  representa-  [fP""^**"'^- 

'  r  Jt  r  tiye  democ- 

tive  democracy  or  the  republic.     In  a  pure  democracy  the  racies. 
assembly  of  the  people  does  all  the  governing,  and  it  is  readily  Biuntschii 
seen  that  only  very  small  communities  in  which  practical  «i/</., 469-485. 
equality  exists  can  ever  have  such  a  government.     No  such  cf.  Moses, 
restrictions  exist  for  a  republic  in  which  the  people  appoint  Democracy 
representatives  who  compose  the  government.    The  republic   Qrowth 
is  of  course  a  much  higher  product  of  political  evolution  chap.  I. 
than  the  democracy  proper,  but  it  is  necessarily  less  a  gov- 
ernment of  the  people  and  by  the  people.     It  does  not 
require  social  or  material  equality  of  the  people,  though 
marked  inequalities  or  classes  are  a  continued  source  of 
danger.    It  does  require  a  high  standard  of  social  character,  a 
general  diffusion  of  education,  and  a  correct  ideal  of  patriotism 
for  its  maintenance  and  development. 

22.  Centralized  and  Dual  Governments.  —  Governments  The  relations 
may  be  differently  classified  according  to  the  concentration  o^  ""tral 
of  all  governing  powers  in  one  body  or  their  separation  be-  government, 
tween  two  governments.    When  the  localities  are  entirely 


1 6  The  American  Federal  State 

Burgess,  Pol.  Subordinated  to  the  national  government,  the  government  of 

Science,  II,      jjg  gjate  is  Said  to  be  centralized.     If,  however,  the  localities 
4-7.  '  ' 

have  a  sphere  of  activity  .of  their  own  as  in  confederacies  or 

Federal  States,  the  term  dual  government  is  used.  The 
tendency  since  feudal  times  has  been  to  make  the  central 
government  more  and  more  powerful,  as  the  State  itself 
became  more  centralized.  Just  as  the  centripetal  or  inte- 
grating forces  of  the  State  have  triumphed  over  the  centrifu- 
gal or  disintegrating  forces,  so  the  central  government  has 
tended  to  absorb  the  local  governments.  Whether  the 
effort  made  in  the  Federal  State  to  maintain  a  balance 
between  the  national  and  the  commonwealth  governments 
will  prove  to  be  futile,  history  will  decide.  If  with  the 
powerful  aid  given  by  the  strong  local  spirit  in  America  and 
a  constitution  of  extreme  rigidity,  the  United  States  cannot 
hold  in  check  the  forces  of  centralization,  we  may  well  come 
to  the  conclusion  that  Federalism  is  after  all  but  a  transitory 
phase  in  the  development  of  centralized  States  with  power- 
ful central  governments. 
The  relations       23.   Parliamentary  and  Presidential  Governments.  —  Na- 

of  executive     tjonal  governments  whether  centralized   or  not,  either  in 

and  legisla-  ° 

tive.  republics  or  monarchies,  may  be  parliamentary  or  presiden- 

Burgess  ibid  ^^^'  Where  the  departments  are  separated  as  much  as 
II,  11-16.  possible  so  that  the  executive  and  the  legislative  branches 
are  very  little  dependent  upon  each  other,  as  in  the  United 
States,  we  have  the  presidential  form.  But  if  emphasis  is 
laid  upon  the  interrelation  of  these  two  departments,  upon 
the  fact  that  they  work  together,  the  executive  being  a  part 
of  the  legislature,  the  real  controlling  part,  yet  always  the 
agent  of  the  legislature,  as  in  Great  Britain,  the  government 
is  parliamentary.  The  former  is  the  outgrowth  of  the  idea 
of  "checks  and  balances  "  prominent  among  political  scien- 
tists at  the  time  when  popular  government  was  in  its  infancy, 
and  the  protection  of  the  individual  from  the  tyranny  of  the 
government  occupied  a  more  prominent  place  in  the 
thoughts  of  men  than  the  efforts  to  make  government 
efficient.    The  theory  upon  which  it  seems  to  be  built  is 


Some  Elements  of  Politics  ly 

that  too  much  government  is  a  worse  evil  than  too  little  —  a 
theory  which  contains  a  large  element  of  truth  in  a  modern 
democracy  as  well  as  in  an  absolute  monarchy. 

24.  The  Legislative  Department — Whatever  may  be  the  Proper  func- 
relation  of  the  different  departments,  at  the  present  time  all  ^'^"^  °^'^^ 

„  •  1  1       r    1       •  1      .  1     .  legislature. 

modern   States   recognize   the   need  of  havmg   legislative, 

executive,  and  judicial  departments.     It  is  difficult  to  define  ,-^"^^Yf '  jo6- 

the  exact  functions  that  ought  to  be  performed  by  each  ;  but  130. 

a  few  general  statements  may  be  of  value.     The  conduct  of  Sidgwick, 

political  societies  is  governed  by  certain  rules  which  the  bulk  P"^^^^"' 

324~332' 
of  the  society  think  necessary  to  its  existence  and  proper  for 

its  development.  These  rules  were  at  first  purely  in  the 
form  of  customs ;  but,  as  society  became  more  complex, 
they  were  committed  to  writing.  Until  within  two  hundred 
years  these  rules  were  not  numerous,  but  the  government 
was  able  to  use  its  power  arbitrarily  in  enforcing  them. 
More  recently  the  attempt  on  the  part  of  the  people  to 
restrict  this  arbitrary  power  has  led  them  to  place  in  the 
hands  of  their  representatives  the  power  to  alter  these  laws 
and  make  new  ones.  This  has  led  the  legislative  depart- 
ments to  enact  a  great  many  laws,  most  of  them  dealing  with 
special  objects,  for  the  purpose  of  reconstructing  society  and 
of  carrying  out  certain  plans ;  whereas  the  true  duty  of  the 
legislative  department  is  rather  to  lay  down  general  rules  for 
governing  the  conduct  of  society  and  to  refrain  from  laying 
down  such  rules  unless  the  actual  needs  of  the  society  at  the 
time  require  that  they  be  embodied  in  the  form  of  statutes. 

25.  The  Executive  Department.  —  If,  then,  the  function  Applies  the 
of  the  legislative  department  is  to  see  that  the  right  laws  are  '^^  *°  special 

CaSCS* 

made,  and  at  the  right  time,  the  proper  function  of  the 

executive  department  is  to  apply  these  laws  to  any  special  ^"^^'''^''• 

cases  that  come  up.     If  an  individual  ignores  a  law,  the  324. 

executive  must  see  to  it  that  the  individual  obeys  the  law,  „ 

Burgess, 
or  is  punished.     If  a  law  is  made  that  the  revenue  of  the  ibid.,\\,yyj- 

State  shall  be  derived  from  taxes  or  certain  imports,  it  is  the  ^"^9- 

duty  of  the  executive  to  assess  those  goods  and   collect 

the  tax.    To  administer  the  laws  in  a  State  as  complex  as 

c 


i8 


The  American  Federal  State 


Adjusts  dif- 
ferences in 
cases  affected 
by  the  law. 
Burgess, 

366. 


The  individu- 
alistic and  the 
socialistic 
theories. 

McKechnie, 
State  and  the 
Individual, 
171-269. 


ours  means  that  an  infinite  variety  of  details  connected  with 
a  vast  number  of  important  subjects  must  be  attended  to. 
And  just  here  is  the  real  danger  that  the  individual  will 
suffer  restriction  of  his  rights  unless  the  executive,  which 
must  be  strong  to  be  efficient,  is  not  properly  controlled. 

26.  The  Judicial  Department.  —  If  one  individual  inter- 
prets a  law  in  one  way,  and  another  individual  interprets  the 
same  law  differently,  so  that  the  acts  of  the  two  individuals 
bring  them  into  conflict,  it  is  necessary  that  there  should  be 
a  department  of  the  government  to  give  an  authoritative  and 
final  interpretation  of  the  law  which  the  executive  shall  make 
all  obey.  Since  as  much  depends  upon  the  interpretation 
of  laws  as  upon  the  laws  themselves,  the  judicial  department 
is  in  a  real  sense  a  law-making  body. 

27.  Theories  concerning  the  Office  of  Government.  —  It 
has  always  been  and  always  will  be  a  mooted  question  as  to 
what  interests  of  the  society  should  be  under  the  care  of  the 
State  through  the  government.  People  might  be  divided 
into  two  classes  according  to  their  views  on  the  subject, 
the  individualistic  and  the  socialistic.  The  individualist 
believes  the  government  should  do  just  as  little  as  possible 
for  the  society,  and  should  not  interfere  with  the  individual 
except  in  cases  of  necessity.  The  extremist  goes  so  far  as 
to  say  that  if  the  government  protects  the  citizen  from  his 
neighbors  and  his  enemies,  it  has  done  its  full  duty.  The 
socialistic  school  claims  the  needs  of  all  are  above  the  rights 
of  the  individual,  and  that  the  government  should  do  every- 
thing in  its  power  not  only  to  protect  but  to  develop  the 
society.  The  extreme  socialist  interprets  this  to  mean  that 
land  should  be  held  for  the  benefit  of  all,  that  the  govern- 
ment should  operate  the  telegraph  and  the  railway  lines, 
and  in  many  cases  favors  the  governmental  control  of  all 
capital.  The  communist  goes  a  step  further  and  asks  that 
the  government  hold  all  property,  capital  included,  for  the 
common  benefit.  Very  few  people  hold  any  of  these  extreme 
views.  The  vast  majority  are  much  more  moderate.  We 
may  class  those  who  think  the  government  is  already  doing 


Sojue  Elements  of  Politics 


19 


more  than  it  ought  as  individuahsts,  while  those  who  believe 
the  sphere  of  government  ought  to  be  enlarged  belong  to 
the  socialistic  school. 

28.  Functions  of  Government.  —  It  is  not  easy  to  deter- 
mine where  the  line  should  be  drawn,  as  the  limits  of  govern- 
mental action  depend  so  much  on  changing  conditions  and  trant. 
on  the  amount  of  governmental  action  to  which  a  particular 
State  is  accustomed.  Wilson,  in  his  book  on  The  State, 
divides  the  functions  of  government  into  two  groups 
(§§  1478-1480)  :  I.  Constituent,  and  II.  Ministrant. 

"I.  The  Constituent  Functions: 

(i)   The  keeping  of  order  and  providing  for  the  protection 
of  persons  and  property  from  violence  and  robbery. 

(2)  The  fixing  of  the  legal  relations  Between  man  and  wife 

and  between  parents  and  children. 

(3)  The  regulation  of  the  holding,  transmission,  and  inter- 

change of  property,  and  the  determination  of  its 
liabilities  for  debt  or  for  crime. 

(4)  The    determination    of   contract    rights  between    indi- 

viduals. 

(5)  The  definition  and  punishment  of  crime. 

(6)  The  administration  of  justice  in  civil  causes. 

(7)  The   determination    of   the   political   duties,   privileges, 

and  relations  of  citizens. 

(8)  Dealings  of  the  state  with  foreign  powers:  the  preser- 

vation of  the  state  from  external  danger  or  encroach- 
ment and  the  advancement  of  its  international 
interests." 


Two  classes : 
constituent 
and  minis- 


"  II.  The  Ministrant  Functions.  —  It  is  hardly  possible  to  give  a 
complete  list  of  those  functions  which  I  have  called  Ministrant,  so 
various  are  they  under  different  systems  of  government.  The  following 
partial  list  will  suffice,  however,  for  the  purpose  of  the  present  discus- 
sion: 

(1)  The  regulation  of  trade  and  industry.     Under  this  head 

I  would  include  the  coinage  of  money  and  the  establish- 
ment of  standard  weights  and  measures,  laws  against 
forestalling  and  engrossing,  the  licensing  of  trades,  etc., 
as  well  as  the  great  matters  of  tariffs,  navigation  laws, 
and  the  like. 

(2)  The  regulation  of  labor. 


Wilson.  The 

State, 

§§  1504-151*- 

Wanbaugh, 
in  At.  Mo., 
LXXXI 
(1898),  120- 
130. 


20 


The  Ametican  Federal  State 


(3)  The    maintenance    of    thoroughfares,  —  including   state 

management  of  railways  and  that  great  group  of  under- 
takings which  we  embrace  within  the  comprehensive 
term  '  Internal  Improvements.' 

(4)  The  maintenance  of  postal  and  telegraph  systems,  which 

is  very  similar  in  principle  to  (3). 

(5)  The  manufacture  and  distribution   of  gas,  the  mainte- 

nance of  water-works,  etc. 

(6)  Sanitation,  including  the  regulation  of  trades  for  sani- 

tary purposes. 

(7)  Education. 

(8)  Care  of  the  poor  and  incapable. 

(9)  Care  and  cultivation  of  forests  and  like  matters,  such  as 

the  stocking  of  rivers  with  fish. 
(10)    Sumptuary  laws,  such  as  '  prohibition  '  laws,  for  example." 

"  These  are  all  functions  which,  in  one  shape  or  another,  all  gov- 
ernments alike  have  undertaken.  Changed  conceptions  of  the  nature 
and  duty  of  the  state  have  arisen,  issuing  from  changed  historical 
conditions,  deeply  altered  historical  circumstance;  and  part  of  the 
change  which  has  thus  affected  the  idea  of  the  state  has  been  a  change 
in  the  method  and  extent  of  the  exercise  of  governmental  functions; 
but  changed  conceptions  have  left  the  functions  of  government  in  kind 
the  same.  Diversities  of  conception  are  very  much  more  marked  than 
diversities  of  practice." 


Sphere  of 
State  action 
must  be 
enlarged 
slowly. 

Willoughby, 
Amer.  Citi- 
tenship,  53- 
62. 

Wilson,  The 

State, 

§}  1521-1535. 


29.  Limits  of  State  Interference.  —  It  is  not  possible  to 
lay  down  any  set  niles  according  to  which  a  State  shall 
decide  whether  it  ought  to  perform  any  particular  "  minis- 
trant "  function.  The  wisdom  of  such  an  action  must  depend 
on  the  history  and  the  present  needs  of  the  State,  upon  the 
extent  of  the  functions  already  exercised,  and  the  efficiency 
of  the  governmental  machinery.  Yet  we  can  readily  see  that 
as  a  society  becomes  complex,  the  government  must  control 
and  regulate  many  more  actions  of  the  citizens  in  order  to 
fully  protect  them.  For  example,  no  one  doubts  the  right 
of  the  government  to  pass  and  enforce  all  proper  measures 
for  the  health  of  the  community.  This  may  lead  in  crowded 
cities  to  regulations  for  individual  householders  that  are  very 
obnoxious.  Dealers  may  have  to  submit  to  inspection  of 
goods  which  might  injure  members  of  the  community,  and 


Some  Elements  of  Politics  21 

factories  are  continually  under  supervision  to  see  that  the 
health  of  the  operatives  is  in  nowise  endangered.  Too  little 
regulation  is  like  too  much  a  mark  of  poor  government. 
The  State  must  see  that  there  is  just  enough,  and  that  it  is 
never  arbitrarily  applied.  Yet  it  will  be  better  for  a  State  to 
leave  something  undone  than  at  one  stroke  to  alter  its  policy 
and  undertake  important  duties  for  which  it  has  no  proper 
training.  It  will  not  pay  a  State  to  perform  functions  which 
may  seem  necessary,  but  which  can  be  performed  only  at  a 
great  loss  of  individual  freedom. 

30.  Growth  of  Law.  —  As  has  already  been  stated,  in  early  From  custom 
times  governments  were  much  less  complex  than  at  present,  *°  statute  and 
and  we  cannot  separate  them  into  three  or  four  departments,  tionai  law. 
The  same  person  or  body  made  the  laws,  saw  that  they  were  -vviison  The 
observed,  and  told  what  they  meant.     But  the  community  stcae, 

was  so  small  that  it  was  not  necessary  to  make  many  laws,  ^'  1416-1443. 
and  as  a  matter  of  fact  the  law-making  body  contented 
itself  with  declaring  what  was  law ;  in  other  words,  what  the 
custom  was  in  that  community.  So  all  early  laws  were  little 
more  than  an  embodiment  of  the  customs  that  were  observed. 
As  the  community  developed,  separate  rulers  or  magistrates 
were  appointed  to  apply  the  law.  As  the  law  was  not  often 
written  down,  the  magistrate  was  inclined  to  depend  as 
much  on  his  own  judgment  as  on  the  law.  This  led  to 
great  abuses,  the  abuses  led  to  protests,  and  the  protests  to  a 
written  law.  To  this  written  law  were  added  in  time  the 
laws  or  statutes  passed  by  the  law-making  body.  If  the  law- 
making body  was  restricted  by  some  great  laws  that  were 
recognized  as  being  at  the  very  foundation  of  the  State,  these 
great  laws  were  called  constitutional. 

31.  Law,  Government,  and  Liberty.  —  We  often  get  the  Conditions 

idea  that  law  and  liberty  (civil  liberty) ,  or  government  and  ""^^"^  ^\\\cy\ 

I&w  becomes 
liberty,  are  contradictory  terms,  so  that  the  more  law  or  the  niost  favor- 
more  government  we  have  the  less  liberty  there  must  be.    Is  able  to 
this  idea  correct?    If  we  were  to  mean  by  liberty  that  each  '  ' 
man  had  a  right  to  do  what  is  right  in  his  own  eyes,  we  see  Burgess.  Pol. 
that  law  interferes  with  liberty.    But  for  each  man  or  any  man  1741^83. 


22 


The  American  Federal  State 


Human  law 
must  con- 
form to 
natural  law. 


to  do  as  he  pleases  is  not  liberty,  since  if  one  man  were  to 
do  that,  the  liberties  and  the  rights  of  others  would  neces- 
sarily be  restricted.  Liberty  cannot  exist  then  unless  there 
is  law  to  control  those  who  would  infringe  upon  the  rights 
of  others.  But  if  too  little  law  means  anarchy  and  not 
liberty,  how  shall  we  determine  how  much  law  and  what 
kind  of  law  is  needed,  so  that  there  shall  be  as  much  liberty 
as  possible.  In  the  first  place,  both  the  amount  and  the 
kind  of  law  must  depend  on  the  condition  of  the  society  for 
which  it  is  made.  In  our  complex  civilization,  we  need  a 
much  larger  number  and  very  different  laws  from  those 
required  by  a  primitive  agricultural  community.  But  in 
each  case  it  is  the  greatest  good  of  the  greatest  number  that 
will  on  the  whole  give  the  fullest  liberty.  This  means,  of 
course,  that  the  liberty  of  the  individual  may  be  sacrificed 
to  the  common  good,  and  that  social  hberty  is  above  indi- 
vidual liberty. 

In  the  second  place,  in  order  to  secure  the  greatest  good 
of  the  greatest  number,  the  law  must  conform  not  only  to 
the  condition  of  the  society  as  it  then  exists,  but  should  be 
in  conformity  with  natural  law.  Any  statute  or  constitu- 
tional law  that  is  artificial,  that  runs  counter  to  the  political, 
economic,  or  social  laws  according  to  which  the  universe 
is  governed,  will  not  only  restrict  hberty,  but  will  injure  the 
society  and  must  in  time  give  place  to  a  truer  law.  It  is 
true  in  political  science,  as  in  everything  else,  that  the  nation 
is  free  not  when  it  tries  to  escape  the  operation  of  law  (for 
that  it  cannot  do),  but  when  it  understands  the  universal 
laws  of  nature  and  acts  in  accordance  with  those  laws.  The 
nation  that  tries  to  make  itself  rich  by  making  its  neighbors 
poor,  as  many  attempted  on  a  grand  scale  two  or  three  cen- 
turies ago,  is  like  the  man  who  tried  to  lift  himself  by  his 
bootstraps.  If  a  nation,  through  law,  tries  to  retain  a  system 
of  society  and  government  that  the  State  has  outgrown,  rev- 
olution will  overthrow  the  existing  order  of  society.  If  it 
clings  to  a  false  economy  which  is  a  survival  of  past  ages,  the 
"law  higher  than  the  Constitution"  will  surely  assert  itself. 


Some  Elements  of  Politics  23 

32.  Kinds  of  Law.  —  The  two  most  prominent  subdivisions  Divisions  of 

of  law  are  into  public  and  private  law.     The  former  deals  P".^'"^  ^"^ 
^  •*  pnvate  law. 

with  all  laws  regulating  the  actions  of  States  or  their  govern- 
ments either  in  relation  to  each  other  or  to  individuals ;  the  ^''s°"-  "^^ 

'  State, 

latter  treats  of  the  relation  of  one  individual  with  another.   §§  1216-1226. 
An  important  branch  of  public  law  is  international  law,  ,„.„ 

,  .   ,    .  ,      .  ,         .  WjUoughby, 

which  is  not  made  by  any  legislature  but  is  merely  the  set  Amer,  ati- 
of  customs  recognized  among  civilized  nations  as  suitable  """^^^P. 
for  governing  their  relations  with  one  another.     Constitu-  yii. 
tional  and  administrative  law  are  also  parts  of  the  public 
law.    One  deals  with   the  principles   of  government,  the 
other  with  details.     Criminal  law  really  belongs  to  public 
law  as  it  defines  crimes  against  the  State  and  makes  pro- 
vision for  the  punishment  of  persons  violating  the  law,  but 
it  is  not  usually  separated  from  other  parts  of  public  law. 

Private  law  covers  a  multitude  of  subjects  more  or  less 
connected  with  our  everyday  affairs.  It  regulates  the  hold- 
ing and  disposal  of  land  and  other  property,  the  relation  of 
parent  to  child,  and  of  employer  to  employee.  It  deals 
with  the  laws  of  marriage  and  divorce,  of  all  kinds  of  con- 
tracts, of  bequest  and  inheritance.  If  an  individual  buys  or 
sells  anything,  makes  a  written  agreement  with  any  one  for 
a  particular  purpose,  or  seeks  a  legal  remedy  for  an  injury 
done,  he  does  it  in  accordance  with  the  private  law  of  the 
State. 

33.  The  Kinds  of  Liberty.  —  We  should  distinguish  dif-  Four  kinds 
ferent  kinds  of  liberty.     When  we  use  the  word  we  ordi-  of  liberty. 
narily  refer  to  civil  liberty,  freedom  from  arbitrary  personal 
restraint  and  the  right  to  enjoy  life  and  the  use  of  property. 
Political  liberty  necessarily  deals  with  the  part  played  in  the 
government  of  the  community.     Religious  liberty  is  found 

where  any  sect  has  the  right  to  worship  in  its  own  way.  We 
find  industrial  liberty  where  the  worker  does  not  have  his 
place  of  residence  and  occupation  picked  out  for  him. 
There  is  no  necessary  connection  between  political  and 
the  other  kinds  of  liberty.  We  naturally  expect  a  greater 
degree  of  all  kinds  in  a  society  that  is  self-governing,  but 


24 


The  American  Federal  State 


Some  ideals 
of  equality. 

McKechnie, 
The  State  and 
the  Indi- 
vidual, chap. 
XXIII. 


The  charac- 
ter of  a  soci- 
ety is  ex- 
pressed in  its 
institutions. 

Cf.  Moses, 
Dent,  and 
Social 
Growth, 
chap.  I. 


Both  are 
forms  of 
growth. 


liberty  is  rather  an  evolution  of  civilization  than  a  product 
of  democracy.  If  we  compare  Anglo-Saxon  England  with 
Rome  or  with  any  modern  State,  we  shall  find  that  while 
there  may  have  been  more  political  freedom,  there  was  less 
of  almost  all  other  kinds. 

34.  Kinds  of  Equality.  —  It  has  been  one  of  our  favorite 
maxims  that  "  all  men  are  created  equal,"  but  in  what  re- 
spects individuals  are  equal  does  not  readily  appear.  Cer- 
tainly in  personal  qualities  the  greatest  difference  exists. 
Theoretically,  all  are  equal  before  the  law.  As  far  as  pos- 
sible, all  have  equal  opportunities.  For  centuries  we  have 
been  drifting  toward  social  equality,  but  only  among  whites. 
The  ideal  of  democracy  has  been  political  equality,  but  with 
few  exceptions  the  equality  has  not  crossed  sex  lines.  If 
equality  is  a  goal  we  attempt  to  reach,  humanity  seems  fore- 
doomed to  disappointment.  Liberty  and  equality  cannot 
live  together.  Given  the  same  chance  and  perfect  freedom 
of  action  ten  men  that  start  together  will  invariably  be  found 
in  a  short  time  to  have  drifted  apart.  We  cannot  make 
men  equal  except  by  bringing  all  to  the  level  of  the  lowest. 

35.  Society  and  its  Institutions.  —  As  society  has  devel- 
oped, there  has  gradually  been  evolved  not  only  a  social 
system  and  a  government,  but  religious  and  business  organi- 
zations which  have  in  time  become  more  or  less  fixed  and 
to  which  the  general  name  institutions  may  be  given.  All  of 
these  are  but  outward  evidences  of  the  forces  at  work  in  the 
society.  Taken  together,  they  are  less  than  society,  yet  they 
offer  the  best  means  for  studying  it,  as  they  are  tangible  and 
more  real.  But  these  institutions  do  more  than  show  the 
character  of  the  society,  they  tend  to  keep  the  society  in  the 
same  stage  that  it  was  when  the  institutions  were  produced. 
This  is  especially  true  of  the  more  complex  institutions, 
which  do  not  readily  change  with  the  natural  and  necessary 
changes  in  society. 

36.  Evolution  and  Revolution.  —  Nothing  can  prevent 
changes  in  any  society.  Growth  is  one  of  the  laws  of  its 
being.    This  may  be  more  or  less  rapid,  but  it  is  constant ; 


Some  Elements  of  Politics  2$ 

in  other  words,  social  etwlution  is  taking  place  all  the  time. 
In  a  narrower  sense  we  sometimes  speak  of  social  evolution 
only  when  the  change  in  society  itself  has  produced  a  change 
in  the  social  institutions,  i.e.  in  the  relation  of  classes  to 
each  other,  or  of  the  members  to  one  another.  When  this 
social  evolution  leads  to  an  altered  form  of  the  State  which 
is  adapted  to  the  new  society,  and  to  suitable  changes  in  the 
government  and  in  the  law  of  the  State,  we  call  the  change 
political  evolution.  But  if  the  real  growth  of  the  society 
leads  to  none  of  these  changes  in  the  relation  of  the  classes 
to  each  other,  to  no  change  in  the  government  or  the  laws, 
a  time  will  come  when  the  new  society  will  demand  that  the 
old  institutions  be  cast  aside  and  new  ones  substituted.  If 
for  any  reason  this  change  is  refused,  or  if  the  old  institu- 
tions cannot  be  adapted  to  the  new  society,  the  new  society 
asserts  itself,  abolishes  the  institutions  it  has  outgrown,  with 
perhaps  much  that  was  valuable  in  its  past  experience ;  and, 
often  after  terrible  suffering  and  bloodshed,  establishes  a  new 
order  of  society,  a  new  form  of  government,  and  a  new  set 
of  laws  suited  to  its  present  conditions.  Such  a  change  is 
called  revolution.  Both  evolution  and  revolution  are  forms 
of  growth,  for  a  partial  evolution  always  precedes  revolution. 
But  revolution  is  wasteful.  It  often  fails  to  establish  the  kind 
of  government  and  the  order  of  society  the  new  State  really 
needs ;  and  the  next  few  years  are  frequently  spent  in  adapt- 
ing the  new  forms  to  the  conditions  of  the  new  State. 

37.    Slavery.  — The  history  of  slavery  shows  how  an  insti-  An  example 

tution  may  at  one  time  be  a  means  of  developing  a  society,  °^  ^  institu- 
,  ^  .  .,.,.,  ^,,  ^      tion  once 

When  at  a  later  period  it  hinders  progress.  Slavery  was  a  useful,  later 
distinct  advance,  both  from  an  economic  and  from  a  humani-  *  ^^"'^se, 
tarian  standpoint,  upon  the  older  custom  of  putting  to  death 
captives  in  war.  It  made  the  first  real  States  possible  because 
it  produced  a  class  that  performed  those  duties  most  necessary 
to  keep  people  alive,  while  it  left  the  conquering  race  free  to 
devote  its  energies  to  the  problems  of  war  and  government. 
In  the  middle  age  of  civilization,  the  harsher  forms  of 
servitude  disappear,  and  the  general  system  of  land  tenure 


26  The  American  Federal  State 

upon  which  society  rested  substituted  for  slavery  a  kind  of 
land  serfdom  or  villeinage.  But  in  all  tropical  countries 
slavery  continued  to  exist,  and  was  looked  upon  as  beneficial 
to  the  lower  as  well  as  the  higher  classes,  since  it  raised 
the  former  from  a  condition  of  barbarism.  Feudalism  was 
not  transplanted  to  America,  but  the  semi-tropical  condi- 
tions of  the  Southern  colonies  led  to  the  development  of  the 
system  of  African  slavery.  There  is  no  doubt  that  this  form 
of  servitude  was  almost  universally  considered  beneficial  to 
the  negro,  to  whom  a  real  service  was  rendered  by  placing 
him  under  christianizing  and  civilizing  influences.  There  is 
no  more  doubt  that  the  economic  and  political  development 
of  the  South  during  the  colonial  period  was  greatly  aided  by 
slavery.  But  it  produced  social  classes,  it  was  adapted  only 
to  the  ruder  forms  of  industry — in  brief,  it  could  not  adapt 
itself  to  the  new  social  conditions  of  which  the  American  and 
French  revolutions  were  not  only  evidences,  but  productive 
forces.  Like  feudal  serfdom,  American  slavery  stood  in  the 
path  of  progress,  sought  to  check  that  progress,  and  was 
destroyed  in  the  attempt. 

38.  Mortality  of  States — No  lesson  of  historical  development 
stands  out  in  greater  prominence  than  this,  —  no  State  has  been  or  is 
likely  to  become  immortal.  Like  all  organisms,  States  show  a  period 
of  early  vigor  and  strength,  during  which  they  are  assuming  a  definite 
form ;  a  second  period  when  all  of  their  forces  are  well  under  control 
and  used  to  the  best  advantage ;  and  a  final  period  of  decay  when  their 
vitality  no  longer  suffices  to  withstand  the  attacks  of  internal  and  exter- 
nal foes.  These  periods  vary  greatly  in  length  with  different  States. 
The  first  may  be  as  brief  as  that  of  the  Arabian  empire  in  the  Middle 
Ages,  or  Spain  at  the  beginning  of  the  modern  period,  or  it  may  be  as 
long  as  that  of  Russia.  All  of  the  periods  may  be  as  long  as  those  of 
Rome,  each  of  which  covered  centuries.  We  seek  to  learn  why  these 
States  fail,  and  then  draw  comparisons  between  them  and  ourselves, 
forgetting  that  their  social  system 'and  political  organization  was  prob- 
ably as  well  adapted  to  their  needs  as  ours  are  to  solve  the  much  more 
difficult  problems  that  confront  us.  We  are  barely  out  of  the  first 
period  of  our  development  and  may  reasonably  look  forward  to  a  long 
and  promising  career  of  national  success;  yet  there  is  every  reason  to 
believe  that  the  second  period  must  give  place  to  the  third. 


Some  Elements  of  Politics  27 

39.  Some  Tendencies  of  Modem  Development.  —  The  Political 
civilized  world  has  witnessed  many  changes  the  last  century  <ie™ocracy. 
or  two.  Society  is  being  reconstructed  on  a  non-feudal 
basis  whose  fundamental  doctrine  is  equality.  Democracy 
represents  the  political  and  to  some  extent  the  social  side 
of  that  reconstruction ;  but  we  have  seen  that  democracy  is 
still  in  its  infancy  over  most  of  the  globe.  The  democracy 
has  transformed  governments  and  has  fostered  new  humani- 
tarian ideas,  but  it  has  not  been  able  to  check  forces  like 
centralization,  colonization,  and  miHtarism. 

Economically,  civiHzed  society  has  advanced  from  the  Economic 
agricultural  to  the  industrial  stage.  \Vhile  modem  industry  consolida- 
has  helped  to  produce  free  labor,  it  is  not  favorable  to 
economic  equality.  It  demands  great  concentration  of 
capital  for  the  maximum  of  production  with  the  minimum 
of  effort,  but  it  has  failed  to  distribute  the  results  of  that 
production  according  to  modern  ideas  of  justice. 

Another  phase  of  modern  development  is  the  growth  of  Nation 
nation  states.  Nationalities  are  becoming  self-conscious,  s^^^** 
and  in  case  they  have  no  common  political  organization, 
have  everywhere  sought  to  form  States  that  would  express 
that  nationality.  The  success  of  the  latest  products  of  this 
movement  —  Germany  and  Italy  —  seems  assured  ;  but 
farther  east,  especially  in  Austria  and  the  Balkan  states, 
there  are  national  problems  that  will  test  the  skill  of 
Europe. 

Many  as  are  the  problems  yet  unsettled,  the  difficulties  The  changes 

that  seem  insoluble,  history  tells  us  that  our  present  civili-  represent 

progress, 
zation  is  its  highest  product.      The  path  of  development 

may  be  as  tortuous  as  the  course  of  the  lower  Mississippi, 

but  humanity  is  coming  nearer  and  nearer  its  goal.     The 

apparent  turns  backward  may   prove,  as  did   the   French 

Revolution,  a  means  of  finding  a  new  and  better  outlet 

to  the  sea  of  a  more  perfect  civilization. 


28  The  American  Federal  State 

QUESTIONS  AND  REFERENCES 
The  State  (§§  1-13) 

a.  Cf.  the  definitions  of  the  state ;  nation  and  folk  in  Burgess, 
Woolsey,  Crane  and  Moses,  and  in  Bluntschli.     Use  indexes. 

b.  On  the  origin  of  and  nature  of  the  state  consult  Smith,  chap.  I  ; 
Bluntschli,  Book  I,  chap.  VII,  and  Book  II,  chaps.  VI-X ;  Woolsey, 
I,  pp.  189-198;   Burgess,  I,  pp.  59-67. 

1.  Make  complete  definitions  of  all  important  terms  used  in  the 
chapter  and  apply  each  to  different  countries  at  the  present  time. 

2.  Show  how  nations  have  tended  to  develop  separate  national 
governments  during  modern  times. 

3.  What  is  the  difference  between  the  English  nation  and  the 
English  State  ?  Is  there  an  Irish  nation  ?  An  Irish  State  ?  Did  the 
nation  or  the  State  reach  a  comparatively  completed  stage  first  in 
France  ?     In  Spain  ?     In  England  ? 

4.  Mention  instances  where  contract  has  been  used  in  forming 
governments.     Were  the  governments  based  solely  on  contract  ? 

5.  To  what  extent  was  the  government  formed  by  the  Constitution 
of  1787  original  ?  To  what  extent  did  it  copy  previous  State  constitu- 
tions (consult  Johnston,  New  Princeton  Review,  1887)  ?  To  what 
extent  was  it  a  copy  of  the  British  constitution  (cf.  §§  136-138)  ? 

6.  In  what  way  is  democracy  now  different  from  democracy  in 
ancient  times  (Bluntschli)  ? 

7.  What  is  the  difference  between  a  voter  and  a  citizen  ? 

Sovereignty  and  Constitutions  (§§  14-17) 

a.  On  the  nature  of  sovereignty  compare  Crane  and  Moses,  chap.  Ill , 
Bluntschli,  Book  VII,  and  in  Lalor,  Book  III,  pp.  763-766 ;  Smith  in 
his  introduction ;  and  Lowell,  Essays  on  Goz'erument,  pp.  189-222. 
On  the  development  of  the  idea  of  sovereignty  see  Pollock  (index). 

b.  On  constitutions  consult  Tiedeman,  Unwritten  Constitution  of 
the  United  States,  and  Cooley,  Comparative  Merits  of  Written  and 
Prescriptive   Constitutions. 

1.  Apply  your  definition  of  sovereignty  to  the  British  Parliament, 
the  German  emperor,  the  French  nation,  the  state  of  Massachusetts. 
In  what  respects  may  each  be  said  to  be  sovereign  ? 

2.  Can  you  find  any  instances  of  "dual  sovereignty"  in  history? 
Show  why  there  is  no  dual  sovereignty  in  the  United  States  at  the 
present  time. 


Some  Elements  of  Politics  29 

3.  What  is  the  method  of  changing  the  constitution  in  France,  in 
England,  and  in  the  United  States  ?  What  does  the  mode  of  amend- 
ment indicate  as  to  the  location  of  sovereignty  (cf.  Wilson,  The  State 
(index),  Borgeaud,  Adoption  and  Amendment  of  Constitutions)  ? 

4.  What  is  the  connection  between  democracy  and  the  written  con- 
stitution ? 

Oovenunent  (§§  18-26) 

1.  Classify  the  important  governments  of  the  present  under  the 
different  heads  mentioned.     Consult  Burgess,  II,  pp.  1-16. 

2.  What  is  the  highest  form  of  government  ?  Does  history  show 
that  aristocracy  is  a  higher  form  than  monarchy  ?     Quote  instances. 

3.  What  advantages  would  we  derive  from  making  the  United 
States  government  more  centralized  (cf.  chap.  X)  ? 

4.  What  is  meant  by  administrative  duties  (see  Goodnow)  ? 

Sphere  of  State  Activity  (§§  27-29) 

a.  Consult  Willoughby,  Citizenship,  chap.  V ;  Spencer's  Social 
Statics,  pp.  109-136,  and  Alan  v.  The  State;  Leroy-Beaulieu,  Modern 
State,  pp.  155-215  ;   Ritchie,  Limits  of  State  Interference. 

b.  On  theories,  see  McKechnie  :  Socialistic,  171-212  ;  Individual- 
istic, 213-260;  Organic,  264-269. 

1.  Which  ones  of  the  ministrant  functions  are  now  used  by  the 
governments  of  the  United  States  ? 

2.  State  the  advantages  and  disadvantages  of  state  ownership  of 
railways  (Hadley,  Railroad  Transportation). 

3.  Select  eight  things  that  the  government  (State  or  national)  is 
doing  for  society,  and  six  that  have  been  proposed.  Of  the  six,  how 
many  do  you  favor  ?  Of  the  eight,  how  many  were  not  undertaken 
fifty  years  ago  ? 

4.  State  the  chief  objections  to  increasing  the  sphere  of  State 
activity  (Willoughby,  Citizenship). 

Law,  Liberty,  and  Equality  (§§  30-34) 

1.  What  is  law  ? 

2.  If  political  liberty  does  not  necessarily  produce  other  kinds  of 
liberty,  will  government  by  democracy  be  permanent  ? 

3.  Why  cannot  liberty  and  equality  live  together  ? 

Processes  of  Political  Growth  (§§  35-39) 

I.  What  State  forms  the  best  example  of  continuous  political  evolu- 
tion ?  What  political  revolutions  have  occurred  during  its  history  ? 
What  social  revolutions  ? 


30  The  American  Federal  State 

2.  What  revolutions  have  occurred  in  the  United  States  ?  What  is 
the  difference  between  the  American  Revolution  of  1776,  the  French 
Revolution  of  1 789,  and  the  European  Revolutions  of  1 848  ? 

3.  Show  how  different  institutions  have  at  one  stage  of  history 
represented  the  best  and  most  progressive  ideas  of  the  time,  and  have 
been  productive  of  the  greatest  good  ;  while  later  they  have  sought  to 
block  the  wheels  of  progress  in  order  to  maintain  their  powers.  Con- 
sider, e^.  the  feudal  system,  the  church  of  the  Middle  Ages,  the 
House  of  Lords,  confederate  forms  of  government,  the  absolute  power 
of  French  kings,  etc. 

4.  Trace  the  powers  of  the  English  crown  from  1066  to  the  present, 
showing  how  it  has  been  modified  by  evolution  and  revolution. 


PART   I 
HISTORICAL    DEVELOPMENT 

CHAPTER  II 

DEVELOPMENT  ON  ENGLISH  SOIL 
General  References 

Freeman,  Development  of  the  English  Constitution.  Emphasizes  the 
continuity  of  English  development. 

Montague,  Elements  of  English  Constitutional  History.  A  very  good 
elementary  account. 

Fielden,  Short  Constitutional  History  of  England.  Historical  discussion 
of  different  topics. 

Boutmy,  English  Constitution.     Suggestive. 

Macy,  English  Constitution.  Descriptive  and  Historical.  Especially 
good  on  modern  period. 

Gneist,  English  Constitution.     2  volumes. 

Taylor,  Origin  and  Growth  of  the  English  Constitution.     2  volumes. 

Medley,  English  Constitutional  History.  Not  a  continuous  history. 
Invaluable  for  reference. 

Taswell  Langmead,  English  Constitutional  History. 

Stubbs,  Constitutional  History  of  England.  3  volumes.  Still  the  rec- 
ognized authority  on  the  Middle  Ages. 

40.   Liberty  and  Government  in  Saxon  England.  —  When  Town  mote, 

the  Angles  and  Saxons  overran  Britain  in  the  fifth  and  sixth  liundred 

.  ....  mote,  and 

centuries,  they  brought  with  them  the  Teutonic  institutions  shire  mote 

that  had  been  in  use  on  the  continent  for  many  years.  established. 

As  soon  as  one  of  these  roving  bands  settled  down  to  an  Montague, 

agricultural  life,  all  the  warriors  came  together  to  parcel  out  ^^S-  ^f^f/.' 
r   ,      ,       -,         ,,.,         ,  ;  tuttoitaJ  HU' 

a  portion  of  the  land  and  decide  other  matters  of  common  fory,  7-14. 
interest.    These  town  motes  or  assemblies  in  which  each 

3« 


32 


The  American  Federal  State 


Wilson,  The 
State,  \\  833- 
838. 

Taylor,  Eng, 
Constitution, 
I,  10-14. 

Howard, 
Local  Consti- 
tutional Hist, 
in  U.  S..  18- 
23,  264-269, 
298-309, 


No  national 
assembly  of 
the  people. 


Advantage  of 
the  insular 
position. 


A  semi-na- 
tional feudal 
system. 


man  had  a  voice  became  a  permanent  institution ;  but  when 
several  towns  (which  were  merely  settled  portions  of  territory) 
united  to  form  what  was  called  a  hundred,  it  was  found  dif- 
ficult to  get  all  the  men  together  in  a  single  assembly.  The 
matter  was  finally  settled  by  choosing  a  reeve  or  head  man 
and  four  "  discreet  men  "  from  each  town  to  meet  at  inter- 
vals. This  solution  of  the  difficulty  by  the  principle  of  rep- 
resentation of  the  smaller  in  the  larger  unit  marks  an  essential 
difference  between  ancient  and  modern  government.  When 
hundreds  united  to  make  shires,  the  same  method  was 
adopted;  but  when  the  shires  were  united  into  kingdoms, 
and  finally  in  the  consolidation  of  the  heptarchy  under 
Egbert  (828),  the  idea  of  representation  seems  to  have 
been  largely  lost  sight  of.  It  is  true  there  was  in  theory  an 
assembly  of  all  the  freemen  of  the  realm,  possessing  the 
nominal  right  of  electing  and  deposing  the  king  ;  but  it  was 
manifestly  impossible  for  many  to  attend,  and  it  soon  became 
a  very  small  body  called,  from  the  select  character  of  its 
members,  the  Witan  or  Witagemote.  But  in  the  local  divi- 
sions there  continued,  essentially  unmodified,  the  two  great 
principles  of  political  liberty  and  representation. 

41.  The  Essential  Factors  in  English  Constitutional 
Development.  —  With  such  auspicious  beginnings,  England 
might  well  seem  destined  to  be  the  home  of  a  self-govern- 
ing people.  Yet  this  would  not  have  been  the  case  but  for 
the  existence  of  three  conditions  or  forces  which  did  not 
exist  upon  the  continent.  The  first  was  its  insular  position. 
The  isolation  which  this  caused  had  been  responsible  for 
the  slight  hold  that  the  Romans  had  obtained  on  Britain, 
and  largely  for  the  thoroughness  with  which  the  Teutonic 
invasion  had  been  completed.  On  this  account  Teutonic 
institutions  had  been  developed  in  all  their  purity,  the  old 
independent  spirit  had  survived,  and  feudalism  had  made 
but  slight  progress  before  the  time  of  the  Conqueror. 

The  second  of  these  conditions  was  the  peculiar  system 
of  feudalism  introduced  by  William  of  Normandy.  Every 
noble  or  freeman  in  the  realm  was  obliged  to  swear  allegiance 


Development  on  English  Soil  33 

to  the  King  as  his  suzerain,  and  to  place  his  obHgations  to 
the  monarch  above  those  to  his  immediate  overlord.    This 
greatly  strengthened  the  power  of  the  Crown,  and  left  the 
King  master  of  the  situation  in  England,  while  on  the  conti- 
nent kingly  power  remained  undeveloped  till  long  after  the 
Crusades.     However,  this  power  of  the  King  would  have 
been  an  injury  rather  than  a  benefit  but  for  the  existence  of 
the  third  factor  peculiarly  English, — the  strong  and  indepen-  The  inde- 
dent  character  of  the  people.    Upon  the  original  Anglo-Saxon  charac'ter  of 
stock,  with  its  love  of  liberty,  its  sturdiness  but  its  uncon-  the  people, 
querable  stolidity,  had  been  engrafted  new  elements  in  the 
Dane  and  the  Gallicized  Norman.     These  elements,  espe- 
cially the  Norman,  were  not  easily  assimilated ;  but  the  friction 
between  the  races  was  no  less  valuable  than  their  later  union 
in  the  development  of  the  national  character. 

It  would  be  unjust  not  to  mention  the  great  service  per- 
formed by  the  Church  during  both  the  Saxon  and  the  Nor- 
man periods  as  the  great  unifying  power  of  the  realm. 
Without  it  there  would  have  been  no  common  bond  between 
the  kingdoms  consolidated  by  Egbert,  and,  but  for  its  guid- 
ing and  directing  influence,  the  Saxon  and  the  Norman  must 
have  remained  apart  much  longer  than  was  the  case. 

42.    The  Norman   Rule:    General   Characteristics — The  Centraii- 

coming  of  the  Normans  necessarily  altered  to  some  extent  nation, 

the  condition   of  affairs   under   the   Saxons.     The  change  Macy,  Eng. 

would  have  been  much  more  radical  but  for  William's  desire    Const.,  117- 

132. 
to  appear  to  be  what  he  claimed, —  the  lawful  successor  of 

Edward  the  Confessor.  The  Witan  was  continued  as  the 
King's  Council,  although  the  real  power  was  gradually  trans- 
ferred to  a  committee  of  a  few  powerful  nobles  and  church- 
men. The  centralizing  Norman  influence  made  itself  felt 
not  only  in  the  altered  form  taken  by  feudalism,  but  through 
the  royal  appointment  of  the  chief  oflScials  of  the  shire  and 
the  gradual  displacement  of  the  shire  mote,  which  was  little 
more  than  a  court,  by  the  King's  judges.  In  the  local  divi-  Ecciesiasti- 
sions  the  political  power  still  remained  with  the  freemen,  ^'^^„'" 
but  the  Church  made  itself  felt  by  transforming  the  town  into 


34 


The  American  Federal  State 


Absolutism 
produces 
Magna 
Charta  and  a 
Parliament. 

Macy,  Eng. 

Const., 

158-179. 


More  liberty 
given  as  a 
reward  for 
the  help  of 
the  people. 


a  parish ;  yet  while  the  whole  local  system  acquired  a  tinge 
of  ecclesiasticism  and  so  came  more  under  the  control  of 
the  King,  it  was  not  greatly  altered.  Many  of  the  towns 
had  purchased  exemption  from  baronial  rule  and  had  been 
granted  charters,  which  freed  them  from  taxation  upon  pay- 
ment of  a  stipulated  sum,  and  left  the  suffrage  in  the  hands 
of  the  leading  guilds  of  the  place. 

43.  Contest  between  Crown  and  Nobility :  Thirteenth 
Century.  —  Probably  the  most  marked  characteristic  of  the 
Norman  and  Angevin  periods  is  the  long  contest  between 
the  Crown  and  the  nobility.  This  struggle  had  very  great 
influence  upon  the  constitutional  and  institutional  develop- 
ment of  England,  for  out  of  it  grew  the  ParUament  and  the 
recognition  of  many  rights  and  privileges  not  existing  on 
the  continent.  At  the  first  the  Crown  was  so  powerful  that 
it  easily  maintained  its  position  without  consulting  the  rest 
of  the  realm.  Under  John,  the  tyranny  became  so  oppres- 
sive that  nobles,  clergy,  and  people  made  common  cause 
against  the  growing  power  of  the  King.  Their  victory  was 
so  overwhelming  that  practically  all  their  demands  were 
granted  in  the  Great  Charter  (1215),  which  guaranteed  to 
each  citizen  the  writ  of  habeas  corpus^  right  of  trial  by  his 
peers,  and  taxation  only  by  consent  of  the  council.  Thus 
at  one  stroke  the  already  threatening  power  of  the  King  was 
checked,  the  nobles  and  commons  were  brought  closer 
together,  and  liberty  of  the  whole  people  seemed  to  be 
assured.  But  the  twenty-five  nobles  who  were  to  see  that 
the  charter  was  observed  found  the  task  too  diflScult  for 
them,  and  the  attempted  restraint  of  the  Crown  was  con- 
tinued by  warfare  rather  than  by  constitutional  means.  In 
the  contest,  each  side  was  anxious  to  get  the  help  of  the 
people,  and  consequently  offered  rewards  for  their  support. 
This  explains  why  in  1265  Simon  de  Montfort  attempted  to 
strengthen  his  position  by  including  in  the  national  assembly 
which  he  called  two  knights  from  each  shire  and  two  bur- 
gesses from  each  town  favorable  to  him.  Not  to  be  out- 
witted by  the  nobles,  the  Crown  adopted  the  same  methods, 


Development  on  English  Soil  35 

so  that  after  1295,  when  a  Parliament  was  called,  it  was  cus- 
tomary to  summon  the  four  estates  of  nobles,  clergy,  knights, 
and  burgesses. 

44.  Fourteenth  to  Sixteenth  Centuries.  —  During  the  first  A  Parliament 
half  of  the  fourteenth  century  a  change  occurred  in  Parlia-   o'^tju^'wo 

'  °  houses. 

ment  which  gave  it  much  greater  strength.     Two  of  the  four 

estates  —  the  nobles  and  clergy  —  united  to  form  one  house  :   ^^^diey,  Eng. 

,  .,       ,  ,  ,  '=•'    ,  ...  .        '     Const' I  Hist., 

while  the  other  two  always  acted  together  m  what  was  later  293-301. 
called  the  House  of  Commons.     As  the  Commons  repre- 
sented  the   people,  both  the  Crown  and  the  Lords  were 
anxious  to  secure  their  aid  in  the  contest  with  each  other.  The  Com- 
In  consequence  it  soon  became  a  recognized  right  of  the  ,he  right  to 
Commons  to  vote  supplies.     Judicious  use  of  this  power  vote  supplies, 
brought  them  others,  for  they  refused  to  vote  taxes  for  the 
King  till  abuses  were  removed  or  privileges  granted.     But 
just  when  it  seemed  as  though  the  King's  powers  would 
finally  be  restricted  by  the  constitution,  three  causes  led  to 
increased  despotism.    The  nobility,  which  had  bom  the  The  Tudor 
brunt  of  the  battle  in  the  contest  with  the  King,  was  almost  preme. 
destroyed  by  the  War  of  the  Roses ;  the  restriction  of  the 
suffrage  to  comparatively  large  property  holders  tended  to 
weaken  the  Commons  at  the  same  time  ;  and  the  large  class 
of  yeomen,  who  had  been  the  bulwark  of  Britain  in  the 
long  war  with  France,  had  begun  to  degenerate  into  a  class 
but  little  better  than  peasants,  and  had  weakened  the  whole 
nation.     But  while  the  Tudors  taught  Parliament  the  lesson 
of  servile  obedience  to  the  King,  they  increased  its  nominal 
power,  and  those  very  monarchs,  by  their  independent  re- 
ligious attitude,  set  an  example  of  political  independence 
which  the  great  Puritanic  element  of  the  nation  was  not 
slow  to  follow.     The  Renaissance  had  grown  into  the  Refor- 
mation, and  in  England  the  Reformation  meant  liberty. 

45.  England  at  the  Close  of  the  Tudor  Period :    Central   Predomi- 

Govemment.  —  The  Central  Government  in  1600  consisted   nf"ceofthe 

Crown. 
of  the  Crown,  the  Privy  Council,  the  Parliament,  and  the 

Judiciary.     There  was  no  such  separation  into  three  depart-    ^^^J/    ^^' 

ments  as  we  have  now  in  this  country.    The  Crown  was,  to  247-260. 


36 


The  American  Federal  State 


Medley,  Eng. 
CoHsfl  Hist., 
78-79.  301. 


Important 
influence  of 
the  local 
gov't  upon 
America. 

Local  gov't 
as  a  whole. 

Goodnow, 
Comp.  Const' I 
Law,  I, 
162-164. 

Channing, 
Town  and 
County  Gov't 
in  the  Colo- 
nies, in 
y.H.  U.S., 
II.  439-453- 


A  centralized 
county  gov't. 

Fiske,  Civil 
Gov't  of 
C/.S.,5<^S3- 


all  practical  purposes,  the  government,  but  in  the  matter  of 
legislation  the  Crown  and  the  Parliament  acted  together; 
that  is,  there  were  the  three  houses  of  King,  Lords,  and 
Commons,  any  one  of  which  had  an  absolute  veto  over  the 
others.  Even  in  legislation  the  King  was  the  most  powerful 
house,  as  he  possessed  the  real  initiative  in  all  important 
matters.  The  Lords  and  the  Commons  each  had  powers  of 
their  own,  the  latter  dealing  chiefly  with  finance.  But  the 
Crown  could  further  increase  its  influence  in  legislation  by 
proroguing  Parliament,  and  even  by  altering  its  composition. 
It  could  create  peers  at  will,  and  might  change  not  only  the 
boroughs  that  sent  representatives,  but  the  franchise  in 
those  boroughs.  Still  another  power  akin  to  legislation  was 
in  the  possession  of  the  King.  He  could  issue  through  the 
Privy  Council  proclamations  which  had  the  force  of  law. 
As  the  Council  was  chosen  by  him  and  directly  responsi- 
ble to  him,  this  power  was  almost  without  limitations.  As 
executive,  he  was  Uttle  restricted.  He  was  commander-in- 
chief,  had  absolute  control  of  all  foreign  affairs,  and  possessed 
great  power  in  appointment.  He  selected  all  judges,  to  hold 
office  during  good  behavior,  which  meant  the  pleasure  of 
the  monarch,  and  so  it  came  about  that  the  judiciary  were 
but  tools  of  the  King,  who  was  the  "  fountain  of  justice." 

46.  Local  Government  in  1603.  —  In  many  ways  these 
central  institutions  were  destined  to  exert  a  less  direct 
influence  upon  America  than  the  local  institutions  of  Eng- 
land. It  was  a  long  time  after  the  first  settlements  were 
made  before  a  real  central  government  was  established  in 
America ;  while  even  the  governments  of  the  colonies  were 
developed  so  slowly  that  the  influence  of  the  Parliament  and 
the  Crown  was  either  purely  general  or  made  itself  felt 
through  their  relation  to  the  colonies  and  consequent  influ- 
ence on  the  development  of  American  nationality  (§§  83-88). 

The  local  governments  were  of  three  kinds,  those  of  the 
counties,  the  parishes,  and  the  boroughs.  The  county  gov- 
ernment was  quite  centralized,  as  all  the  important  officials 
were  appointed  by  the  Crown.    The  chief  officials  were  the 


Development  on  English  Soil  37 

justices  of  the  peace,  who  held  court  in  place  of  the  old  Medley,  £»^. 
shire  court,  and  looked  after  the  administration  of  justice,  39^-400.      ' 
the  highways,  etc.    They  were  assisted  by  the  sheriflf  and  the 
lord  Heutenant.     In   the  parishes  the  vestry  looked  after  "^^  Parish, 
most  secular  and  ecclesiastical  matters.    The  vestry  usually  Fiske,  ibid., 
numbered  twelve,  and  they  were  either  chosen  by  the  rate-  36-39- 
payers  of  the  parish  or  elected  by  the  former  vestry  in  case  Medley,  ibid., 
of  a  vacancy,  that  is,  they  formed  a  close  corporation.      In  400-404- 
most  of  the  parishes  the  ratepayers  chose  other  persons, 
such  as  the  constable  and  the  church-wardens,  who  were 
overseers  of  the  poor.     When  money  was  to  be  raised,  the 
amount  and  the  manner  of  raising  it  was  often  decided  by 
the  ratepayers.     It  can  thus  be  seen  that  all  over  England 
the  people  of  the  rural  districts  were  accustomed  to  a  system 
of  local  government  in  which  they  took  no  small  part.    The 
boroughs  were  governed  in  one  of  three  ways,  —  the  officials  Borough 
being  elected  by  just  a  few  persons  who  occupied  political  2°^^"^™^"  • 
positions,  by  a  large  number  connected  with  the  guilds,  or 
by  the  taxpayers  at  large.     The  government  was  not  of  so 
popular  a  character  as  in  the  country,  but  even  in  the  towns 
there  was  considerable  opportunity  to  gain  political  experi- 
ence.    It  is  not  easy  to  realize  that  so  great  a  degree  of 
self-government  existed  under  the  Tudors,  but  it  can  be 
easily  seen  how  great  an  advantage  was  derived  by  the  more 
progressive  classes  from  this  political  experience. 

47.    The  Rights  of  Englishmen  (1600).  —  Just  as  the  local  Civil  rights 
governments  of  England  furnished  the  models  for  the  colo-   '"secure, 
nists,  so  the  civil,  political,  and  religious  liberty  enjoyed  or 
denied  in  the  England  of  the  seventeenth  century  was  the 
basis  of  the  new  society  which  sprang  out  of  the  old  under 
conditions   much   more   favorable  to  the  development  of  Cf.  Medley, 
rights.     From  the  times  oi Magna  Charta  every  freeman  had  ^^'  ^""'^^ 
been  nominally  entitled  to  a  speedy  trial  before  a  jury  of  his  434-460. 
peers,  without  risk  of  being  subjected  to  heavy  bail,  severe  ^,  . 
fines,  or  excessive  imprisonment.     These  provisions  were,   En^.  Const. 
however,  very  little  observed.     The  writ  of  habeas  corpus  '"  ^*'^'*  "/ 
had  been  suspended  with  impunity,  and  it  was  not  till  the  107-259. 


38 


The  American  Federal  State 


Political 

liberty 

uncommon. 


Disabilities 
of  non- 
churchmen. 


Economic 
freedom 
almost 
unknown. 


law  of  1679  was  passed  that  the  writ  was  faithfully  observed. 
It  is  difficult  for  us  to  imagine  a  condition  of  society  that 
called  itself  civilized,  where  human  life  was  held  so  cheap 
that  the  number  of  crimes  punishable  by  death  was  over  one 
hundred,  where  the  steaUng  of  a  sixpence's  worth  of  property 
was  a  capital  offence,  and  where  there  was  no  guarantee 
that  a  person  accused  of  a  crime  would  have  a  chance  to 
prove  his  innocence. 

Political  liberty  was  by  no  means  common.  In  the 
chartered  boroughs,  only  the  members  of  the  favored  guild 
—  in  many  cases  only  the  most  favored  members  —  had  a 
right  to  vote  for  either  the  town  officers  or  the  representa- 
tives in  Parliament.  In  the  counties,  none  but  freeholders 
who  owned  property  worth  forty  shillings  a  year  voted  for 
members  of  the  House  of  Commons,  though  the  parish 
officers  were  nominally  at  least  elected  by  the  parishioners 
in  most  parts  of  the  country.  The  offices  were  class 
privileges. 

Religious  liberty  was  almost  unknown  in  every  part  of 
Europe,  Church  and  State  being  everywhere  united,  and  the 
man  outside  the  authorized  Church  seemed  hardly  entitled 
to  the  protection  of  the  State.  Actual  persecutions  were 
not  so  common  in  England  as  on  the  continent,  but  Separa- 
tists, Quakers,  and  Catholics  each  came  in  for  a  share.  By 
the  law  of  1562,  Catholics  were  excluded  from  the  House 
of  Commons  till  the  Catholics'  emancipation  bill  was  passed 
in  1829.  In  voting  for  public  officials,  all  dissenters  were 
necessarily  excluded. 

While  the  period  of  monopolies  and  commercial  restric- 
tion belonged  rather  to  the  later  history  of  the  seventeenth 
century  and  to  the  eighteenth,  this  was  an  age  of  anything 
but  economic  freedom.  Custom  as  well  as  law  prevented 
even  freemen  from  taking  advantage  of  opportunities  which 
required  a  change  of  occupation  or  residence.  A  practical 
serfdom  existed  in  many  parts  of  the  country,  and  agricul- 
ture was  of  course  the  only  important  occupation.  Later  in 
the  century,  unwise  restrictive  commercial,  tariff,  and  navi- 


Development  on  English  Soil  39 

gation  laws  became  even  more  common,  and  stunted  many 
growing  industries.  In  every  way  a  selfish  policy  was  in  the 
end  ruinous  to  all  concerned. 

Unfortunately  there  was  not  as  great  a  change  in  the  Real  liberty 
rights  of  the  people  as  in  the  powers  of  Parliament  during  '^^^^■'op*'^ 
the  seventeenth  century ;  but  the  growing  enlightenment  of 
the  nation  and  the  growth  of  liberal  ideas  caused  a  gradual 
emancipation  from  the  harsher  and  cruder  forms  of  servi- 
tude. Through  it  all,  in  fact,  throughout  English  history, 
the  people  show  a  spirit  of  sturdy  independence,  combined 
with  a  love  of  order  and  a  respect  for  law,  growing  probably 
out  of  the  system  of  well-preserved  local  self-government,  of 
which  all  persons  of  the  English-speaking  race  may  well 
be  proud. 

48.  The  Revolutions  of  the  Seventeenth  Century. — Limited  Arbitrary  ac- 

as  were  the  powers  of  the  Parliament  in  1600,  the  Stuarts  tionofthe 

Stuarts  in- 
attempted  to  rule  entirely  without  its  aid.     Although  the   creases 

members  of  Parliament  were  much  more  independent  in  power  of 
character  than  those  under  the  Tudors,  it  is  questionable 
whether  they  could  have  increased  the   powers  of  either  Borgeaud. 
house  but  for  the  foolish  stubbornness  of  the  kings.     They  ^letseq.   ' 
had  only  to  assert  the  rights  which  had  always  been  recog- 
nized as  theirs,  and   which   were  now   being   violated,  in  £„„.  consf., 
order  to  win  the  cordial  support  of  the  nation.     But  they  91-99- 
no  sooner  obtained  promises  of  reform  than  these  promises  Medley, 
were  broken.     This  falseness  further  weakened  the  position  £»^-  Const'i 
of  the  Stuarts.     But  it  was  not  in  their  political  relations      ^  '  ^°^ 
toward  Parliament,  but  because  of  their  religious  absolutism, 
that  the  great  rebellion  broke  out.     Strangely  enough,  the 
results  of  the  civil  war  were  more  favorable  to  parliamentary 
independence  than  to  religious  freedom. 

After   1660  the  individual   subject    was    no   more   free  Revolution  of 
from  arbitrary  restrictions  than  before.     It  required  another   ^^^' 
struggle  to  have  his  rights  not  only  recognized,  but  respected.   Montague, 
The  Revolution  of  1688,  with  the  political  changes  of  the   j^^ilij,"^  " 
subsequent  decade,  is  significant  from  two  points  of  view. 
First,  it  marks  the  beginning  of  real  individual  liberty  by 


40 


The  American  Federal  State 


Nature  of  the 
Cabinet  sys- 
tem. 


Medley, 
Eng.  Const' I 
Hist.,  iio- 
III. 


Evolution  of 
the  Cabinet. 

Wilson.  The 
State,  §$  854- 
859- 

Medley,  ibid., 
104-112. 

Montague, 
Eng.  Const., 
163-173. 


assuring  freedom  of  the  press,  religious  toleration,  and  re- 
peat for  the  new  habeas  corpus  act  by  making  the  tenure  of 
the  judges  for  good  behavior.  Second,  it  placed  Parliament 
in  a  stronger  position  ;  for  while  the  Crown  was  not  deprived 
of  many  important  powers,  the  dependence  of  the  Crown 
upon  Parliament  in  certain  particulars  injured  the  former. 

49.  Cabinet  System  and  its  Development.'  —  It  was  this 
peculiar  relation  of  the  Crown  and  Parliament  which,  under 
the  favorable  conditions  during  the  Hanoverian  period,  led 
to  the  development  of  the  Cabinet  system.  This  system  may 
be  described  as  one  in  which  the  powers  of  the  Crown  are 
exercised  by  a  Cabinet  responsible  not  to  the  monarch,  but 
to  the  Parliament.  The  members  of  the  Cabinet  are  leaders 
of  the  Parliament ;  they  are  in  one  sense  the  servants  of  the 
Parliament,  in  another  its  masters.  They  are  the  servants 
now  of  the  Commons,  because,  if  the  lower  house  votes  in 
opposition  to  them,  they  must  either  resign  in  a  body  or 
have  a  new  election  of  the  Commons  on  the  point  at  issue. 
They  are  its  masters  because  they  still  have  the  Crown's  pre- 
rogative of  introducing  bills,  i.e.  they  have  the  initiative  in 
all  important  legislation.  It  was  not  till  the  middle  of  this 
century  that  the  Cabinet  system  was  fully  developed. 

The  Cabinet  was  originally  composed  of  those  members 
of  the  Privy  Council  who  especially  enjoyed  the  confidence 
of  the  King.  As  late  as  the  time  of  William  III  they  were 
really  appointed  by  the  monarch  and  responsible  to  him, 
but  were  then,  as  now,  a  body  not  recognized  by  law. 
Under  George  I  and  II  the  inability  of  the  kings  to  speak 
English,  and  their  ignorance  of  English  politics,  led  them  to 
leave  the  business  of  government  to  the  prime  minister,  who 
kept  his  place  if  he  could  control  Parliament.  In  this  way 
the  interdependence  of  the  Cabinet  and  Parliament  was 
brought  about.  George  III  tried  to  check  this  movement 
by  seeking  to  exercise  the  powers  of  the  Crown  more 
directly,  but  the  attempt  ended  in  failure.     As  the  Cabinet 

1  This  section  and  the  next  are  given  for  the  sake  of  comparison  with 
later  development  in  America. 


Development  on  English  Soil  4 1 

could  not  be  responsible  to  two  houses,  who  might  disagree, 
the  power  to  control  the  Cabinet  was  left  to  the  Commons, 
who  were,  in  their  turn,  before  1832,  controlled  by  the 
Lords.  Since  that  time  the  people,  through  their  represen- 
tatives, have  exercised  all  the  powers  of  government. 

50.   The  Constitution  made  Democratic.  —  Before  1832  it  The  three  re- 
was  the  custom  to  choose  representatives  from  the  counties  ^°""  .^'"^  °^ 

the  nine- 

and  from  boroughs  that  had  been  selected  centuries  before,  teenth  cen- 
It  was  one  of  the  Crown's  powers  to  alter  the  list  of  places  ^^^y- 
sending  members  —  one  which  the  King  had  lost,  but  which  Montague, 
the  Parliament  hesitated  to  assume.     In  these  boroughs  the  »*'^-.  203-212. 
suffrage  varied  widely,  but  in  almost  every  case  was  very  Compare  ref- 
restricted.     In  the  counties  few  voted,  because   few  were  end"of  chao 
owners  of  any  land  at  all.     In  the  Reform  Act  of  1832  the  XXII. 
popular  demands  for  a  share  in  the  government  were  granted. 
Suffrage  was  very  far  from  universal,  but  the  number  of 
voters  was  more  than  doubled ;  while  most  of  the  rotten 
boroughs  were  struck  from  the  list,  and  the  towns  that  had 
grown  up  as  a  result  of  the  new  industrial  movement  were 
put  on.    This  act  was  bitterly  opposed  by  the  Lords,  who, 
by  their  very  opposition,  signed  their  death  warrant.     The 
parliaments  called  under  it  furthered  the  cause  of  reform 
and  popular  liberty,  and  through  various  measures,  particu- 
larly the  acts  of  1868  and  1884,  have  made  the  government 
much  more  popular.     It  must  not  be  supposed,  however, 
that  the  aristocracy  are  without  power.    The  political  leaders 
have  usually  been  drawn  from  their  ranks,  and  form  a  class 
such  as  does  not  exist  in  this  country. 


QUESTIONS  AND  REFERENCES 
England  before  1603  (§§  40-44) 

a.  As  to  whether  English  liberty  was  due  to  the  Anglo-Saxons  or 
the  Puritans,  compare  Freeman,  and  Borgeaud's  Democracy  in  Eng' 
land  and  New  England,  Part  I. 

I.  Compare  the  influence  of  the  feudal  S3rstem  upon  the  King's 
power  in  France,  Germany,  and  England. 


42  The  American  Federal  State 

2.  Show  in  what  ways  the  contest  between  the  King  and  the 
Church  affected  the  history  of  England. 

3.  Give  the  causes  which  led  to  the  growth  of  free  cities.  Show 
how  they  became  free,  and  trace  their  influence  upon  modern  freedom. 

4.  Did  Magna  Charta  recognize  the  principle  of  "  no  taxation  with- 
out representation"? 

5.  Did  Parliament  have  the  legal  right  to  elect  and  depose  kings 
before  the  Tudor  period  ?     Prove. 

6.  Give  reasons  for  the  disfranchisement  of  the  poorer  classes.  Was 
it  a  benefit  in  any  way  before  1500?     Why  was  it  injurious  after  1500? 

7.  State  clearly  why  Parliament  became  subservient  to  the  Tudors. 

England  In  1603  (§§  45-47) 

1.  How  was  Parliament  chosen  in  1600?  Give  a  brief  history  of 
the  judiciary  under  the  Tudors. 

2.  Why  had  local  self-government  been  preserved  when  the  national 
government  was  absolute  ? 

3.  Compare  the  different  kinds  of  liberty  in  England  (1600)  with 
those  existing,  in  Anglo-Saxon  times,  in  Massachusetts  and  Virginia 
(1650);  in  the  United  States  to-day. 

England  since  1603  (§§  4S-50) 

1.  Were  the  Stuarts  more  absolute  than  the  Tudors?  If  so,  in  what 
ways? 

2.  Account  for  the  difference  between  the  action  of  the  Parliament 
from  1530  to  1546  and  from  1630  to  1640. 

3.  What  part  did  Puritanism  play  in  the  events  of  the  seventeenth 
century? 

4.  Give  in  detail  the  changes  in  government  and  liberty  that  fol- 
lowed the  Revolution  of  1688. 

5.  Has  the  Parliamentary  system  succeeded  in  preserving  both  the 
prerogative  of  the  Crown  and  the  rights  of  Parliament  ?     Explain. 

6.  Did  George  IH  hasten  or  retard  the  development  of  govern- 
ment by  the  people  ? 

7.  In  what  ways  was  the  Reform  Act  of  1832  a  revolutionary 
measure  ? 

Government  of  England  To-day 

a.  On  the  central  government,  consult  Macy,  9-116;  Wilson, 
§§  860-936;  Traill,  Central  Government;  Bagehot,  English  Consti- 
tution; Burgess,  Constitutional  Law,  I,  91-97,  138-141;  II,  59-76, 
185-215,  338-346;  Goodnow,  Comparative  Administrative  Law  (table 
of  contents) ;   Courtney,  Working  Const,  of  United  Kingdom,  1-228. 

b.  On  local  government,  see  Wilson,  §§  938-1010;  Chambers, 
Local  Government ;  Maltbie,  English  Local  Government  of  To-day. 


CHAPTER  III 

THE  COLONIAL  PERIOD  (1600-1763) 

General  References 

Thwaites,  The  Colonies.    The  best  single  volume. 

Hart,  Formation  of  the  Union,  1-41. 

Channing,  Student's  History  of  the  United  States.    An  excellent  suof 

mary  of  our  history  from  1492  to  1898. 
Channing,  The  United  States  of  America  (1765-1865),  1-40. 
Mace,  Method  in  History.     A  suggestive  interpretation  of  our  history 

to  1865;  to  1763,  pp.  82-104. 
?)\o&nc,  French  War  and  Revolution,  1-I16. 

Lodge,  A  Short  History  of  the  English  Colonies  in  America.     Excel- 
lent studies  on  social  life. 
Channing,   Town  and  County   Government  in  the  English   Colonies. 

(J.  H.  U.  S.,  II.) 
Frothingham,  Rise  of  the  Republic,  chaps.  I-IV.     Especially  good  on 

the  development  of  Union. 
Story,    Commentaries  on   the  Constitution,  §§  1-197.     The  best  con- 
stitutional summary. 
Lamed,  History  for  Ready  Reference.    Under  U.  S.  and  names  of  states. 
Lecky,  England  in  the  XVHI  Century,    II,    1-21;    III,  321-331, 

341-346. 
Fiske,  Beginnings  of  New  England ;    Old  Virginia,  2  volumes,  and 

The  Dutch  and  Quaker  Colonies  of  America,  2  volumes. 
Taylor,   Growth  of  the  English   Constitution.     Introduction.     Traces 

continuous  development  from  England. 
Howard,   Local   Constitutional  History   of  the    United  States.     The 

authority  on  the  subject. 
Macdonald,  Documents  Illustrative  of  American  History  (1606-1775). 
Winsor,  Narrative  and  Critical  History  of  America,  III-V. 
Bancroft,  History  of  the  United  States  (last  revision),  Vols.  I,  II. 
Hildreth,  History  of  the  United  States,  I,  II.    American  Commonwealth 

Series.     Connecticut  particularly  valuable. 
For  further  bibliography,   consult  Thwaites   and  Hart   (see   above), 

Winsor,  Narrative  and  Critical  History,   III-V;    Mace,  Man- 

ual;  Channing  and  Hart,  Guide. 
43 


44 


The  American  Federal  State 


Settlements 
under  land 
grants. 


Colonial  be- 
ginnings. 


Thwaites, 
The  Colonies, 
55- 

Character  of 
the  colonists. 

Hart,  Forma- 
tion of  the 
Union,  \  4. 

Channing, 
Local  Gov't 
in  Eng.  Colo- 
nies, 

y.  H.  U.  S., 
II,  437  etseq. 

Influence  of 
soil  and  cli- 
mate. 

Hinsdale, 
h\  70.  74- 


51.  Method  of  making  Settlements  in  America.  —  AH  of 

the  early  settlements  of  the  English  in  America  were  small, 
and  most  of  them  were  made  in  the  same  way.  When  for 
any  reason  a  party  of  men  wished  to  emigrate  to  the  new 
world  or  to  send  out  others  in  search  of  wealth,  they  sought 
a  grant  of  land  upon  which  to  make  their  future  homes. 
In  some  cases  they  were  not  only  given  a  strip  of  land, 
but  were  incorporated  into  a  company  with  a  charter  from 
the  King.  This  charter  stated  the  limits  of  their  territory 
and  told  how  the  company  should  govern  itself.  In  time 
the  Atlantic  coast  and  the  banks  of  the  larger  rivers  became 
covered  with  tiny  settlements,  often  unconnected  with  each 
other,  but  usually  made  under  the  direction  of  the  com- 
panies or  of  individuals  called  proprietors,  who  controlled 
that  particular  territory.  It  would  scarcely  be  correct  to 
say  that  these  scattered  settlements  united  to  form  colonies, 
for  as  a  rule  the  "colony  "  existed  quite  as  early  as  any  of 
its  settlements ;  but  it  is  possible  to  assert  that  the  "  colony  " 
had  no  real  existence  till  these  settlements  became  so 
numerous  that  they  were  consolidated  and  a  common  colo- 
nial government  became  necessary. 

52.  Influences  affecting  Colonies.  —  The  character  of  the 
local  government  and  of  the  central  government  developed 
in  each  colony  was  largely  influenced  by  the  particular  con- 
ditions to  which  it  was  subject.  Perhaps  the  most  impor- 
tant of  these  conditions  was  the  character  of  the  colonists 
themselves ;  for  that  determined,  among  other  things,  what 
kind  of  ideas  and  institutions  were  brought  to  the  colony. 
Hardly  less  significant  was  the  influence  of  soil  and  chmate, 
which  played  such  an  important  part  in  making  the  town 
the  natural  local  unit  of  New  England  and  the  plantation 
that  of  the  South,  and  which  left  such  an  important  impres- 
sion on  the  life  of  each  section.  Where  people  of  other 
nationalities  were  found,  they  almost  always  left  some  trace, 
while  the  peculiar  form  of  the  church  institutions,  the 
introduction  of  different  social  classes,  and  finally  the  char- 
acter of  the  earliest  charter  in  each   colony,  with   those 


The  Colonial  Period 


45 


apparent  accidents  which  helped  to  give  it  its  peculiar 
development,  were  among  the  causes  of  many  differences 
between  the  colonies. 

53.  Lines  of  Political  Development.  —  It  is  customary  to 
separate  the  colonies  into  three  distinct  classes,  because  of 
differences  in  the  character  of  the  local  governments  estab- 
lished :  (i)  the  town  system  developed  in  New  England; 
(2)  the  county  system  in  Virginia  and  the  South;  and  (3) 
the  compromise  or  mixed  system  in  the  Middle  colonies. 
The  reasons  why  these  kinds  of  governments  were  estab- 
lished in  the  different  locahties  depend  upon  the  influence 
which  each  one  of  the  causes  just  mentioned  exerted  over 
that  locality.  How  those  causes  happened  to  develop  these 
types  of  local  government,  we  shall  see  shortly.  It  is  suffi- 
cient here  to  add  that  town,  county,  and  mixed  systems 
exerted  a  vast  influence  historically  over  belts  directly  west 
of  the  colonies  in  which  each  type  was  developed. 

54.  The  Charter  of  1606.  —  It  was  the  most  natural  thing  in  the 
world  that,  when  the  merchants  of  London  and  Plymouth  wanted  to 
make  settlements  in  America  for  purposes  of  trade,  they  should  have 
applied  for  a  charter.  During  the  Middle  Ages  there  had  grown  up 
all  over  Europe  the  custom  of  granting  to  corporate  guilds  town  char- 
ters, with  extended  privileges.  Out  of  these  had  come  land  charters, 
which  not  only  stated  the  bounds  of  the  land  grant,  but  defined  the 
rights  of  the  company  with  regard  to  liberty  and  government.  Only 
six  years  before,  in  1599,  Elizabeth  had  given  the  famous  East  India 
Company  a  liberal  charter,  with  almost  complete  power  of  self-gov- 
ernment. 

The  charter  grant  to  the  Plymouth  and  London  companies  in  1606, 
while  less  liberal  than  that  of  the  East  India  Company,  gave  very  ex- 
tensive territories.  The  Plymouth  Company  could  settle  anywhere 
between  the  41  and  45  parallel,  and  the  London  Company  between  34° 
and  38°.  The  government  for  each  company  was  vested  in  an  English 
council  of  thirteen  persons,  appointed  by  the  King.  Under  this  council 
were  two  others  of  thirteen  each,  appointed  in  the  same  way  for  the 
colonies.  None  of  these  councils  were  law-making  bodies,  as  they 
merely  carried  out  the  instructions  of  the  King.  They  were,  however, 
given  the  right  to  defend  the  colonies  and  to  coin  money.  The  rights 
of  the  colonists  were  guaranteed  by  the  stipulation  that  they  should 
have  "all  the  liberties,  franchises,  and  immunities  of  free  denizens 


Different 
types  of  local 
government 

Taylor,  Eng. 
Constitution, 
I,  27-30. 

Fiske,  Civil 

Gov't  in 

U.  S.,  81-95. 


Previous  his- 
tory of  char- 
ters. 

Fisher,  Evo- 
lution oftht 
Const,,  28, 29. 


Provisions. 
Brown,  Gene- 
sis of  the 
Const.,  I,  52- 
63. 

Macdonald, 
Documents, 


46 


The  American  Federal  State 


Conditions 
were  anti- 
democratic. 

Mace,  Meth- 
odin  History, 
93-103. 

Crane  and 
Moses,  Poli- 
tics, 91-100, 
H8-125. 


Two  repre- 
sentatives 
from  each 
town,  hun- 
dred, or 
plantation. 

Channing, 
$43- 


and  natural  subjects  within  any  of  our  dominions,  to  all  intents  and 
purposes  as  if  they  had  been  abiding  and  born  within  this  our  realm  of 
England,  or  in  any  other  of  our  dominions." 

55.  General  Character  of  Political  and  Social  Conditions  in 
the  South.  —  In  one  sense  most  of  the  English  settlements 
were  made  under  the  charter  of  1606,  but  it  was  upon  Vir- 
ginia that  the  charter  exercised  the  greatest  influence.  The 
subsequent  charters  of  that  colony  were  direct  successors 
of  that  instrument,  but  more  democratic  in  spirit,  as  the 
powers  of  government  were  soon  transferred  to  the  whole 
body  of  stockholders.  Under  these  charters  many  settlers 
migrated  to  America.  Their  character  might  readily  be 
imagined  from  the  motives  that  prompted  them,  as  practi- 
cally all  were  in  search  of  adventure  or  wealth.  Class  dis- 
tinctions were  made  almost  from  the  start,  and  became 
much  more  prominent  as  the  colony  grew.  The  great 
tobacco  plantations  fostered  a  landed  aristocracy  at  the 
same  time  that  they  made  slave  labor  necessary,  and  the 
importation  of  indented  servants  profitable.  Such  social 
differences  counteracted  all  influences  toward  equality  of 
any  kind.  General  education  would  have  been  out  of  place 
in  such  a  system.  All  ecclesiastical,  economic,  and  political 
advantages  gradually  became  the  possession  of  the  highest 
class,  who  looked  upon  themselves  as  the  natural  leaders. 
It  is  not  strange  that,  under  such  circumstances,  the  whole 
life  of  the  people  should  have  been  productive  of  inequali- 
ties, which  were  clearly  expressed  in  absence  of  local  self- 
government,  restriction  of  the  suffrage,  and  concentration 
of  power  in  the  hands  of  a  few. 

56.  The  First  Virginia  Assembly  (1619).  —  These  restric- 
tive tendencies  were  not  especially  noticeable  at  the  very 
beginning.  The  first  fifteen  years  of  Virginia  history  showed 
great  constitutional  progress  of  all  classes  then  in  the 
colony.  The  settlers  had  shown  themselves  so  opposed  to 
the  arbitrary  rule  of  the  governors  sent  over  that  the  major- 
ity of  the  English  company,  who  belonged  to  the  liberal 
party,  decided  to  try  an  experiment  in  self-government.  To 


The  Colonial  Period  47 

that  end  they,  in  1619,  directed  the  governor,  Yeardley,   Fiske,  Old 
to  call  two  representatives  from  each  town,  hundred,  or    *?"•  ^'  *^S- 
plantation  to  assist  him  and  his  council  in  making  the  laws. 
In  this  way  was  a  spirit  of  independence  in  America  com- 
bined with  the  liberalism  of  an  English   company  in  the 
development  of  the  first  popular  assembly  in  America. 

57.  The  People  and  the  Government  in  the  South.  —  By  Assembly  of 

the   Royal  Instructions   of   1621    this   system   of  colonial   'andowners 
.     1  11  .  ,  1       ,  .       continued. 

government  was  mdorsed  and  contmued;  and  when,  m 
1624,  the  Virginia  Company  was  dissolved  and  the  charter 
recalled,  the  King  took  the  place  of  the  company  in  appoint- 
ing the  governor,  the  council,  and  the  other  officials, 
although  the  people  were  still  allowed  to  choose  representa- 
tives to  sit  with  the  council.  This  model  was  imitated  by 
the  other  colonies  in  the  South.  The  early  attempt  to 
allow  all  the  freemen  of  Maryland  to  have  a  part  in  making 
the  laws  soon  gave  place  to  such  an  assembly,  sitting  not 
as  a  separate  body,  but  with  the  governor's  council.  Caro- 
lina did  not  even  attempt  to  use  the  cumbersome  constitu- 
tion of  I^cke,  but  early  adopted  the  Virginia  system,  which 
seemed  so  well  suited  to  the  conditions.  Yet  even  the 
rough  life  of  the  frontier  did  not  produce  perfect  equality. 
The  existence  of  well-defined  classes,  graded  from  slaves  up 
through  indented  servants  to  the  landed  classes,  affected 
politics  as  well  as  society,  and  kept  the  suffrage  from  the 
hands  of  all  the  freemen. 

58.  Local  Government  in  Virginia.  —  In  local  government  Local 

the   people   took   even   less   part.     The   soil   was   so   well  government 

adapted  to  agriculture  that  plantations  naturally  sprang  up  parativeiy 

everywhere,  and  towns  did  not  flourish.     As  a  country  set-  unimportant, 

tied  with   plantations  has  a  very  scattered  population,  it  Hinsdale, 

possesses  few  needs  that  require  the  attention  of  the  whole  ^^  7'*"^' 

people  for  even  a  large  district.     In  consequence  of  these  Channing. 

conditions  the  county  was  much  more  important  than  the  J'^  J^^ ' 

parish.     This  left  to  the  vestry  of  the  parish  few  important  il,  474-489. 

duties,  and  in  time  the  vestry  came  to  reelect  its  own  sue-  closed 

cessors  according  to  the  custom  of  many  parishes  and  more  vestries. 


48 


The  American  Federal  State 


Fiske,  Civil 
Gov't,  59-61. 


Centralized 

county 

government. 

Taylor,  Eng. 
Constitution, 
1.38-39. 

Howard, 
Local  Const'l 
^"'•.  393- 
397. 


Democratic 
ideas  and 
practices  of 
the  Puritans. 

Mace, 
Method  in 
History, 
86-93. 

Borgeaud, 
Democracy, 

Crane  and 
Moses, 
PolUics, 
101-117. 


municipal  councils  in  England.  Such  "closed  vestries" 
were,  of  course,  fatal  to  the  political  development  of  the 
people,  who  became  so  indifferent  to  questions  of  govern- 
ment as  not  to  use  opportunities  that  were  offered  to 
improve  their  condition. 

The  county  government  was  even  less  favorable  to  po- 
litical equaUty.  The  county  officers,  the  lieutenant,  the 
sheriff,  and  the  justices  of  the  peace,  who  had  administra- 
tive as  well  as  judicial  duties,  held  office  through  appoint- 
ment by  the  governor.  The  people  were  debarred  from 
any  share  whatever  in  the  direct  conduct  of  affairs.  Yet 
the  aristocracy  who  controlled  the  parishes  and  the  assembly 
did  make  themselves  felt  in  the  government  of  the  county, 
because  by  custom  the  governor  chose  the  county  officers 
from  their  number. 

59.  General  Character  of  Political  and  Social  Conditions  in 
New  England.  —  New  England  was  settled  almost  exclusively 
by  English  Puritans,  most  of  whom  came  to  this  country  in 
order  to  get  rid  of  the  arbitrary  church  government  imposed 
upon  them  by  the  ministers  of  Charles  I.  They  believed  in 
simplicity  in  church  rule,  in  election  of  pastors  by  the  con- 
gregations, and  that  the  conduct  of  the  individual  should 
be  controlled  by  the  standards  of  Scripture.  They  had  not 
separated  from  the  Enghsh  Church,  but  had  attempted  to 
reform  it  by  persuading  the  Church  to  adopt  their  methods. 
When  that  failed,  a  great  many  congregations  migrated  as 
one  body  to  America.  On  account  of  similar  interests,  fear 
of  the  Indians,  and  the  lack  of  large  fertile  valleys  suitable 
for  plantations,  they  settled  together  and  usually  established 
what  was  known  as  the  "  Independent "  form  of  church 
government,  i.e.  the  whole  congregation  chose  the  pastor, 
looked  after  the  finances  and  other  matters.  It  was  very 
natural  that  the  congregation  should  look  after  what  few 
secular  matters  needed  attention,  so  we  find  the  congrega- 
tion formed  what  was  really  a  town  meeting,  in  which  only 
church  members  could  vote.  In  this  way  the  religious 
organization  of  the  Puritans  made  possible  and  necessary 


The  Colonial  Period  49 

what  was  the  most  democratic  form  of  local  government 
then  in  existence,  but  it  also  made  religious  qualifications  for 
voters  almost  as  necessary. 

The   Puritan   spirit   produced   some   interesting   results,   Liberality 
because  it  was  democratic  in  one  sense  and  exclusive  in  ^"'^  exciu- 

.  I    ,      ,  siveness  of 

another.  The  dependence  upon  Scripture  led  them  to  the  Puritans, 
establish  schools  in  order  that  they  might  study  to  better 
advantage.  Their  attempts  to  govern  themselves  in  their 
own  way  led  them  to  restrict  the  privileges  of  the  non-Puri- 
tans of  the  colony,  and  those  whose  privileges  were  thus 
restricted  with  true  Puritan  spirit  protested  with  such  suc- 
cess that  the  new  government  was  even  more  democratic 
ihan  the  old.  Thus  the  spirit  of  the  Puritans  leavened  the 
whole  community.  It  never  overcame  religious  exclusive- 
ness  nor  produced  social  equality,  but  it  effectually  counter- 
acted every  tendency  toward  centralization  in  government, 
made  education  at  public  expense  the  policy  of  the  colonies, 
and  gave  to  all  practically  the  same  civil  rights. 

60.  Early  Constitutional  Development  in  Massachusetts.  —  Charter  of 
The  charter  which  the  King  gave  Massachusetts  Bay  Com-   ^^'*9- 
pany  (1629)  was  a  very  liberal  document.     It  placed  the  Channing, 
entire  control  of  the  government  in  the  hands  of  the  stock-   ^  59' 
holders,  and  permitted  them  to  elect  the  governor,  deputy- 
governor,  and  the  eighteen  assistants,  and  to  control  the 
admission  of  new  members.     It  was  this  instrument  which 
Winthrop  and  his  companions  boldly  carried  to  America  the 
year  after  settlements  were  begun.    As  there  were  already 
scattered  church  congregations  in  which  each  member  was 
allowed  a  voice  in  the  conduct  of  all  affairs,  ecclesiastical  or 
secular,  these  church  members  now  took  the  places  of  the 
former  stockholders,  i.e.  they  were  given  the  same  right  to   Early  civil 
vote.    So  the  charter  of  a  corporation  became  the  charter  ^'^putes. 
of  a  society  in  which  Church  and  State  were  closely  united,   Montgomery, 
but  to  which  the  Church  brought  the  life-giving  principle  of   ^'"denfs 

,  »        1  1  If  Atfter,  Hist., 

popular  government.    As  the  colony  grew  and  the  govern-   j\  87-89. 
ment  became  more  complicated,  tendencies  less  favorable  to 
growth  appeared.    The  non-church  members  began  to  out- 


so 


The  American  Federal  State 


Victories  of 
the  Liberals. 

Mace, 
Manual  of 
Amer.  Hist., 
129-131 
(text). 


A  more 

democratic 

government 

involving 

new  political 

principles. 

Thwaites, 
Colonies,  §  58. 

Johnston, 

Connecticut, 

63-78. 

Borgeaud, 
Democracy, 
1 17-142. 


number  the  communicants  so  that  the  suffrage  really  became 
quite  restricted.  At  the  same  time  the  general  court,  as  the 
body  of  assistants  was  called,  began  to  legislate  with  regard 
to  matters  purely  local,  recklessly  invading  the  sphere  of  the 
town  meetings.  This  centralizing  tendency  met  with  uni- 
versal opposition,  leading  to  two  results.  First,  all  purely 
local  matters  were  left  to  the  towns,  and  second,  repre- 
sentatives of  the  towns  began  to  sit  with  the  assistants,  in 
order  to  help  them  in  making  the  laws  and  to  guard  the 
interests  of  the  towns. 

But  the  liberalism  due  to  the  opposition  of  the  Puritan 
spirit  to  Puritan  exclusiveness  did  not  stop  there.  In  1662, 
by  what  was  known  as  the  "  halfway  covenant,"  many  per- 
sons not  church  members  were  given  the  privilege  of  voting. 
Before  that,  the  lack  of  a  written  code  had  made  it  possible 
for  the  magistrates  to  apply  the  laws  loosely,  and  had  caused 
many  complaints.  In  1641  the  "Body  of  Liberties"  reme- 
died this  state  of  affairs  by  guaranteeing  to  all  the  right  of 
trial  by  jury,  and  of  petition  and  equal  protection  before  the 
law.  Suffrage  for  members  of  the  town  meetings  was  altered 
so  that  many  who  could  not  vote  for  representatives  might 
vote  for  selectmen. 

61.  The  Connecticut  Constitution  (1639).  — The  colonies 
that  were  planted  south  of  Massachusetts  showed  much  the 
same  characteristics.  The  self-governing  town  was  everywhere 
the  great  stronghold  of  liberty  and  the  basis  of  government. 
It  was  nowhere  better  developed  than  in  Connecticut.  The 
people  of  Connecticut  had  emigrated  from  Massachusetts 
largely  because  they  opposed  the  narrowness  shown  in  the 
strict  religious  test  for  voters,  though  they  later  outgrew 
their  scruples  and  applied  a  test  similar  to  that  of  Massa- 
chusetts. As  they  had  no  charter,  they  arranged  for  them- 
selves a  system  of  government  like  that  in  Massachusetts. 
The  influence  of  the  charter  as  a  constitution  is  clearly 
shown  by  the  embodiment  of  these  fundamental  laws  in  a 
written  document ;  but  the  fact  that  these  "  Fundamental 
Orders"  were  created  by  the  people  themselves  and  not  given 


The  Colonial  Period 


51 


by  an  outside  person  marks  a  distinct  step  in  advance  in 
constitutional  development.  No  mention  is  made  of  assem- 
blies of  all  the  freemen  of  the  settlement,  but  deputies  from 
the  towns  were  to  meet  with  the  governor,  deputy-governor, 
and  magistrates  (assistants),  while  the  governor  was  elected 
by  the  general  court. 

A  system  of  government  was  recognized  and  guaranteed  for  both    Events 
Connecticut  and  Rhode  Island  by  their  liberal  charters  of  1662  and    between  1650 
1663,     In  the  latter  colony  the  spirit  of  freedom  went  farther  than  in    ^"    ^^°°" 
the  others,  by  preserving  the  right  of  suffrage  for  freemen  after  it  had    Channing, 
disappeared  elsewhere.     About  the  time  these  charters  were  granted,    $i  81-84,  9^ 
that  of  Massachusetts  was  confirmed,  on  condition  that  certain  things   99- 
were  done  for  the  Crown  and  for  members  of  the  Church  of  England. 
The  failure  of  Massachusetts  to  carry  out  its  part  led  to  the  revoca- 
tion  of  its   charter   in   1684,  and  was  followed   by  the   unsuccessful 
attempt  to  revoke  the  charters  of  Connecticut  and   Rhode  Island. 
Under  William   III,  Massachusetts   obtained   a   new  charter,  which 
made  property  and  not  religion  the  basis  of  the  suffrage,  and  left  the 
appointment  of  the  governor  in  the  hands  of  the  King. 


62.  The  Town  Meeting. — The  influence  of  the  New 
England  town  meeting  upon  American  constitutional  lib- 
erty can  hardly  be  overestimated.  The  meetings  were 
held  at  least  once  a  year,  usually  in  the  spring,  and  all 
"  freemen "  were  accustomed  to  come  together  to  discuss 
and  decide  matters  pertaining  to  local  or  central  govern- 
ment, to  vote  for  the  assistants,  in  some  cases  for  the  gov- 
ernor and  his  deputy,  and  to  choose  representatives  to  the 
assembly  as  well  as  their  own  town  officers.  As  every  town 
had  at  least  one  deputy  in  the  assembly,  interest  in  the 
affairs  of  the  colony  was  always  maintained.  In  the  local 
government,  the  people  chose  selectmen  to  decide  unim- 
portant matters  that  came  up  between  the  sessions  of  the 
town  meeting ;  but  the  records  were  often  subjected  to  a 
very  searching  criticism,  so  that  supervision  was  constant 
and  careful.  Other  officers,  such  as  the  constable,  over- 
seers of  the  highway,  overseers  of  the  poor,  and  town 
clerk  were  chosen  at  the  spring  meetings  each  year,  and 


Character, 
methods,  and 
influence. 

Fiske,  Civil 
Gov't,  16-31. 

Howard, 
ibid.,  62-74. 

Channing,  in 
J.  H.  U.  S., 
H.  459-474- 


S2 


The  American  Federal  State 


Popular 
assembly ; 
supervisor 
system  for 
localities. 

Mace, 
Method  in 
History,  103- 
104. 

Goodnow, 
Administra- 
tive Law,  I, 
178-185. 

Howard, 
ibid.,  362- 
364. 


Commis- 
sioner sys- 
tem in  the 
counties. 

Howard, 
ibid.,  373- 
387. 


were  constantly  under  surveillance.  This  was  possible 
because  almost  all  of  the  towns  were  small  and  compact, 
and  because  interference  in  local  affairs  by  the  assembly  had 
not  been  allowed.  In  the  selection  of  town  officers,  suffrage 
was  at  first  practically  the  same  as  for  choosing  representatives 
of  the  colonial  government,  but  in  time  many  non-freemen 
who  were  property  owners  were  admitted.  At  the  close  of 
the  seventeenth  century  any  landowner  with  property  worth 
forty  shillings  a  year  was  allowed  to  vote. 

63.  New  York.  —  In  the  colonies  conquered  from  the 
Dutch  the  unit  of  local  government  had  generally  been 
the  manor,  but  it  was  rarely  or  never  self-governing.  The 
central  government  was  autocratic,  and  but  little  influenced 
even  by  the  nine  advisors  chosen  by  a  few  of  the  people. 
The  English  occupation  introduced  the  general  principles 
of  English  liberty,  and  in  the  course  of  twenty  years  led  to 
the  establishment  of  an  assembly  chosen  by  the  freeholders 
to  sit  with  the  councillors  and  make  the  laws.  No  taxes 
were  to  be  levied  without  the  consent  of  this  assembly. 
The  manors  were  gradually  supplanted  by  the  township 
system,  which  as  a  late  growth  possessed  much  less  vitality 
and  power  than  in  New  England.  The  chief  peculiarity  of 
the  system  was  the  method  of  having  the  towns  in  each 
county  choose  supervisors  as  an  administrative  assembly  for 
that  county. 

64.  Pennsylvania,  —  The  system  of  local  government 
that  was  most  common  in  Pennsylvania  was,  like  that  of 
New  York,  a  compromise  between  the  county  and  the  town- 
ship t)'pe,  but  it  was  more  influenced  by  the  county,  as  the 
colony  was  so  much  nearer  Virginia.  Instead  of  having 
supervisors  from  the  townships  as  in  New  York,  the  county 
was  governed  by  commissioners  elected  from  three  or  five 
districts.  There  was  little  or  no  township  government  at 
the  first,  and  the  county  officials  were  given  extended 
powers. 

While  the  political  institutions  of  the  Quakers  are  not  espe- 
cially noteworthy,  their  political  and  social  ideas  belonged 


The  Colonial  Period  53 

to  the  nineteenth  rather  than  the  seventeenth  century.  The  Advanced 
principle  of  equality  was  at  the  basis  of  these  ideas,  and  q^^^°  * 
led  in  many  cases  to  extremely  liberal  and  humanitarian 
views.  The  treatment  of  people  belonging  to  other  sects 
was  not  marked  by  the  harshness  observable  elsewhere,  the 
suffrage  was  subject  to  fewer  restrictions  than  in  other  colo- 
nies, and  an  attempt  was  made,  though  without  success,  to 
abolish  the  death  penalty  except  for  murder. 

65.  Central  Government :  General.  —  It  has  been  custom-  "^^e  classical 
ary  to  divide  the  colonies  into  three  classes,  according  to  the  ^^^  colonics, 
method  of  appointing  the  governor :    the  Royal,  in  which 

the  governor  is  the  representative  of  the  King ;  the  Pro-  mentaries, 
prietary,  in  which  he  is  appointed  by  the  "  proprietor  "  ;  and  ^^  159-161. 
the  Charter,  which  have  governors  elected  by  the  people.  Cf.Channing 
A  more  perfect  classification  is  that  suggested  by  Professor  ^  ■^^^** 
Osgood,  who  separates  them  into  Corporation  and  Provin- 
cial colonies,  the  former  acting  as  a  corporate  body,  the  Professor 
latter  in  direct  dependence  on  the  mother  country.     In  classification. 
many  of  the  colonies  we  find  that  the  frame  of  government 

,.      J   .  ,  .  .  .  Osgood,  in 

IS  to  some  extent  outuned  m  a  charter  or  m  written  mstruc-  ^,  //.  a., 
tions  with  which  the  system  must  conform.  All  had  the  1895,617-627. 
three  departments  of  government  more  or  less  separated, 
and  legislatures  in  all  degrees  of  development.  Each  colo- 
nial government  was  entirely  separate  from  every  other,  but 
was  in  close  touch  with  the  home  government,  and  in  regard 
to  most  matters  subject  to  its  supervision. 

In  1760  the  only  pure  charter  colonies  were  Connecticut  and 
Rhode  Island.  Massachusetts  approached  the  charter  form,  but  had 
a  governor  appointed  by  the  Crown.  Pennsylvania,  Delaware,  and 
Maryland  were  Proprietary,  the  rest  were  Royal. 

66.  The  Charter  as  a  Colonial  Constitution.  —  Although  Nature  6f  a 
so  few  of  the  colonies  were  classified  as  charter,  in  one  ^  *^*'* 
sense  all   of  them  showed  the  influence  of  the  charters  Thwaites. 
which  most  of  them  had   in  the  beginning.     As  has  been  .   *^  "  "*"' 
said,  these  charters  were  documents  issued  by  the  Crown  to 
individuals  or  to  incorporated  companies  giving  a  grant  of 


54 


The  American  Federal  State 


(On  the 
whole  sub- 
ject, see 
Moray,  in 
A.  A.  A.,  I, 
S37-544-) 


Development 
of  the  "  char- 
ter constitu- 
tion." 


The  per- 
sistence of 
charter  gov- 
ernment 


land,  defining  the  rights  of  the  company,  and  giving  a  plan 
for  the  government  of  the  company.  In  theory,  these  char- 
ters were  irrevocable  by  the  Crown,  though  forfeitable  to  it ; 
but  in  no  way  before  the  Revolution  was  the  right  of  Par- 
liament to  interfere  with  any  charter  admitted.  The  Stuart 
kings  did,  however,  annul  charters  with  impunity  and  with- 
out sufficient  cause ;  but  under  the  Hanoverians  this  illegal 
practice  was  discontinued. 

Most  of  the  colonies  had  possessed  charters  which  they 
in  time  surrendered  or  lost,  but  Massachusetts,  Connecticut, 
and  Rhode  Island  continued  to  govern  themselves  according 
to  their  charters  until  the  Revolution.  We  have  already 
seen  in  some  detail  how  the  earliest  charters  came  to  be  the 
fundamental  law  of  Massachusetts  and  Virginia,  and  how 
other  colonies  embodied  in  later  charters  a  more  perfect 
system  of  government  modelled  upon  one  or  the  other  sys- 
tem. These  later  charters  nominally  created  corporations, 
so  the  legal  fiction  of  a  trading  company  was  preserved,  but 
to  all  intents  and  purposes  the  Connecticut  charter  of  1664 
was  the  Constitution  of  1639  recognized  by  the  King.  It 
thus  had  the  sanction  of  the  people,  which  was  necessary 
to  make  it  a  constitution,  and  the  sanction  of  the  King, 
which  was  necessary  to  a  colonial  constitution.  While  the 
other  charters  represent  these  ideas  less  perfectly,  they 
were  well  enough  developed  to  make  them  essentially  the 
same. 

In  those  colonies  that  had  lost  their  charters,  the  charter 
government  was  preserved  through  definite  instructions  or 
frames  of  government,  and  the  charter  influence  is  clearly 
seen  in  the  determined  protests  of  the  people  to  any  arbitrary 
change  of  the  spirit  or  form  of  government.  Frequent  refer- 
ence was  made  to  the  rights  of  the  charter,  even  though  the 
charter  itself  had  long  since  been  annulled.  The  persistent  and 
pretty  well  recognized  claim  made  by  Virginia  to  the  north- 
west territory  on  the  basis  of  her  charter  of  161 2  is  but  a 
familiar  example  of  this.  So  that  to  a  limited  extent  all  of 
the  colonies  enjoyed  the  privileges  of  a  written  constitution. 


The  Colonial  Period  55 

In  all  of  these  colonies,  if  a  citizen  believed  the  colonial  The  pnnci- 

law  conflicted  with  the  charter,  he  had  the  right  to  bring  the  sti^u°ion"'i°"" 

matter  into  court  for  settlement,  with  appeal  to  the  Lords  of  legislation. 

Trade,  so  that  a  principle  similar  to  our  present  interpreta-  ^*'  ^  376. 
tion  of  our  constitutions  by  the  courts  was  recognized. 

67.  The  Governor.  —  In  eight  of  the   thirteen  colonies  A  powerful 
the  governor  was  the  representative  of  the  King.     He  was  ^^^2l\  "^^"^^ 
appointed  by  the  Crown  and  removed  at  pleasure.      The 

tenure  was  usually  brief,  and  the  men  of  a  very  ordinary  temporaries, 
type,  with  some  notable  exceptions.  Where  election  was  in  il,  153-170. 
the  hands  of  the  people,  the  term  was  one  year ;  but  it  was 
customary  to  reelect  a  satisfactory  official  year  after  year. 
The  governor's  power  varied  greatly,  according  to  the  ex- 
tent to  which  the  legislature  had  made  good  its  claim  to  a 
real  share  of  the  government.  He  had  an  absolute  veto  on 
all  legislation  subject  to  revision  by  the  King.  He  usually 
had  charge  of  public  lands,  made  appointments  for  all 
offices,  including  judgeships,  exercised  the  prerogative  of 
pardon,  had  command  of  all  military  forces  of  the  colony, 
and  was  in  general  the  most  powerful  force  in  the  govern- 
ment. He  was  usually  aided  by  a  council,  which  in  many 
cases  was  the  upper  house  of  the  legislature.  To  this  coun- 
cil he  looked  for  advice,  but  he  was  seldom  bound  by  its 
views.  Thecouncil  did  not  have  the  control  of  administration. 

68.  The  Legislature.  —  In  the  royal  colonies  the  legisla-   General 
tive  power  was  vested  in  one  or  two  houses  and  the  gov-  P°"'^"- 
emor.     In  most  of  the  royal  colonies  the  relation  of  the  Story.  Com- 
legislature  to  the  executive  was  much  the  same  as  in  Eng-   7^"^^^^' 
land  at  the  beginning  of  the  seventeenth    century  (§  45), 

that  is,  the  assembly  had  little  more  than  the  power  of  ap- 
proving bills  proposed  by  the  governor.  Even  in  finance 
they  possessed  little  power  of  initiative.  In  the  colonies 
where  local  self-government  was  more  common  and  more 
real,  the  legislatures  introduced  most  of  the  bills,  though  the 
influence  of  the  governor  in  legislation  was  considerable. 

By  1 763  the  bicameral  system  was  in  use  except  in  Penn-   Organiza- 
sylvania,  Delaware,  and  Georgia.    The  lower  houses  were  *'°"' 


56 


The  American  Federal  State 


Difficulties 
in  legisla- 
tion. 


Not  a  mere 
process  of 
imitation  of 
Parliament. 

Fischer,  Evo- 
lution of  the 
Const.,  133- 
127. 


always  elected  by  the  people,  either  from  towns,  counties,  or 
other  districts.  The  terms  were  short.  Of  the  upper  houses, 
those  of  Connecticut  and  Rhode  Island  were  chosen  by  dis- 
tricts, that  of  Massachusetts  by  the  assembly.  In  the  other 
colonies  they  were  usually  appointed  directly  by  the  governor. 

When  bills  had  been  passed  by  the  legislature,  there  were 
several  obstacles  to  be  encountered  before  they  became 
laws.  There  was,  first,  the  governor's  veto,  except  in  Penn- 
sylvania. Then  the  law  might  be  set  aside  as  in  conflict 
with  the  charter,  if  there  was  one,  or  in  conflict  with  the  laws 
of  England.  This  might  be  done  by  the  judges  of  the 
colony,  or  much  more  commonly  by  the  Lords  of  Trade. 
Finally,  it  might  be  rejected  by  the  Lords  because  it  was 
objectionable  to  the  King. 

69.  Development  of  a  Bicameral  System  of  the  Legislature. 
—  In  spite  of  the  fact  that  the  English  Parliament  with  its 
two  houses  placed  before  the  eyes  of  the  colonists  a  legisla- 
tive model,  the  single  house  remained  the  practice  of  the 
colonies  during  most  of  the  seventeenth  century.  The  rep- 
resentatives of  the  people  sat  with  the  governor's  assistants, 
except  in  a  few  instances.  An  attempt  was  made  by  Locke's 
constitution  for  Carolina  to  establish  two  houses  totally  dis- 
tinct, with  the  exclusive  right  of  initiation  vested  in  the 
upper  house,  but  this  was  never  put  into  practice.  In  Penn- 
sylvania such  a  plan  was  indeed  tried,  but  the  reaction 
proved  so  strong  that  in  1696  the  upper  house  not  only  lost 
the  right  of  initiation,  but  was  merged  in  the  assembly, 
with  which  it  sat  till  the  time  of  the  Revolution.  In  most 
of  the  other  colonies  the  great  struggle  between  the  people 
and  the  governors,  during  the  first  half  of  the  eighteenth 
century,  led  to  the  separation  of  the  two  parts  of  the  legis- 
lature so  unlike  in  interests,  character,  and  manner  of  ap- 
pointment. In  New  England,  although  both  the  assembly 
and  the  assistants  were  chosen  by  the  people,  the  influence 
of  the  Parliamentary  model,  the  old  customs  in  Massachu* 
setts,  and  the  method  of  electing  the  assistants  by  districts, 
led  eventually  to  the  entire  separation  of  the  two  houses. 


The  Colonial  Period  57 

70.  Growth  of  the  Power  of  the  Colonial  Assembly.  —  Al-  Contests  be- 
though  the  popular  assemblies  were  everywhere  common  in  ^^*'*  ^^* 

°  "^    *  ^  governors 

1 700,  it  cannot  be  said  that,  out  of  New  England,  they  were  and  the  as- 

very  strong;  but  during  the  next  half  century  they  were  sembiies end- 
greatly  developed  through  different  contests  with  their  gov-  j^^  victories. 
ernors.   The  governors,  representing  the  King  or  the  proprie- 
tor,  often  had  a  very  high  opinion  of  their  own  prerogative,    The  Colonies, 
and  a  very  low  one  of  the  rights  of  the  people.    The  point  hh  123-126. 
of  view  of  the  high-spirited  assemblies  was  exactly  opposite.  Taylor.  Eng. 
In  1693,  as  the  charter  was  silent  on  the  subject,  Massachu-   ConstUuHon, 
setts  had  asserted  the  right  of  the  assembly  to  originate  all     ' 
money  bills.     This  claim  had  not  been  allowed  by  those 
in  authority  in  America  or  England,  but  was  the  basis  for 
colonial  pretensions.     There  was  a  constant  struggle  to  see 
whether  a  regular  salary  should  be  voted  the  governor,  or 
whether  it  should  be  renewed  from  year  to  year,  but  in 
1735  the  Lords  in  Trade  gave  up  the  attempt  to  make 
Massachusetts  vote  a  regular  stipend.     In  Virginia  the  as- 
sembly had  gained  an  advantage  by  obtaining  the  right  to 
appoint  a  treasurer,  so  that  they  were  unusually  successful ; 
but,  in  general,  in  the  South  the  governors  gained  the  upper 
hand,  while  north  of  Maryland  the  assemblies  won  the  day. 

It  must  not,  however,  be  supposed  that  the  contests  were 
solely  over  salaries.  It  might  be  over  the  granting  of  unoc- 
cupied lands  claimed  by  the  governor  as  the  representative 
of  the  King,  or  over  the  taxing  of  the  proprietor's  property. 
But  whatever  it  was,  it  usually  was  narrowed  down  so  that 
the  assembly  refused  to  vote  the  governor's  salary  till  he 
did  as  they  wished ;  and  as  the  governors  seldom  remained 
long,  their  temporal  needs  were  more  important  to  them 
than  a  question  of  constitutional  right,  so  the  assemblies 
usually  won. 

These  conflicts  had  both  their  good  and  their  bad  side.  Good  and 
They  caused  very  great  ill-feeling  between  the  people  and  JSf/j.onSs°' 
the  governors,  though  that  never  extended  to  the  King,  and 
they  constantly  interfered  with  the  transaction  of  business. 
On  the  other  hand,  they  maintained  the  interest  of  the  peo- 


58 


The  American  Federal  State 


The  "  Let 

alone  " 
policy. 


Ivords  of 
Trade. 

Fiske,  Civil 
Gov't,  156- 
157- 

Channing, 
kh  79.  "3- 
IIS- 

Lamed, 
Hist,  for 
Ready  Ne/er- 
ence,  3168- 
3173,  3180. 


pie  in  public  matters,  developing  a  spirit  of  independence, 
trained  a  body  of  men  in  the  conduct  of  the  colonial  govern- 
ments, and  produced  such  popular  government  as  existed 
nowhere  else  on  the  globe.  But  even  those  advantages  were 
not  unmixed,  for  the  voting  classes  and  especially  their 
representatives  who  were  sent  to  the  assemblies  often 
attempted  to  exercise  rights  to  which  they  had  no  claim, 
and  felt  that  any  invasion  of  their  claims  was  an  act  of 
tyranny. 

71.  Relation  of  the  Colonies  and  the  King.  —  During  the 
entire  colonial  period  England  did  not  attempt  to  exercise, 
any  special  control  over  the  colonies.  Throughout  the  seven- 
teenth century  the  kings  had  been  kept  too  busy  looking 
after  Parliament  to  pay  much  attention  to  the  colonies,  which 
were  left  to  develop  much  as  they  pleased.  Toward  the 
close  of  the  century  more  attention  was  paid  to  the  creation 
of  councils,  commissions,  and  boards  whose  members  were 
appointed  by  the  King  in  Council  for  the  purpose  of  super- 
vising American  affairs.  In  1696  there  was  formed  a  per- 
manent board  known  popularly  as  the  Lords  of  Trade,  which 
was  instructed  to  correspond  with  each  colony  so  as  to  keep 
informed  about  it  and  in  touch  with  it,  to  take  charge  of  all 
matters  pertaining  to  America,  to  hear  all  appeals  and  com- 
plaints and  veto  laws  that  were  repugnant  to  the  laws  of 
England.  Either  directly  or  through  this  board,  many 
ministers  tried  to  meddle  with  the  affairs  of  the  colonies, 
though  the  long  period  under  Walpole  was  marked  by 
leniency  of  colonial  control.  The  King  in  Council  was  able 
to  exercise  great  influence  in  America  through  the  appoint- 
ment of  the  royal  governors.  This  official  could  appoint  his 
council  (usually  the  upper  house  of  the  legislature,  and  the 
highest  colonial  court),  and  even  regulate  such  details  as  the 
qualifications  of  electors,  the  towns  which  should  be  repre- 
sented, and  the  number  of  members  of  the  assembly.  He 
possessed  an  absolute  veto  upon  all  legislation ;  and  even  if 
he  yielded  to  the  assistants,  the  laws  might  be  nullified  by 
royal  rescript. 


The  Colonial  Period  59 

72.  Parliament  and  the  Colonies. — The  exact  relation  of  Different 
Parliament  to  the  colonies  throughout  this  period,  and  more  viewsregard- 
especially  after  1760,  was  a  matter  of  considerable  dispute,  power  of 
The  colonies  had  from  the  first  admitted  the  right  of  Par-  Parliament 

,.  ,  111  1        -iiM         1    over  the  colo- 

liament  to  regulate  commerce  largely  because  the  illiberal  ^^^^ 

navigation  and  sugar  laws  were  not  enforced.     It  was  ad-   ^, 

°  °  Channmg, 

mitted  on  both  sides  that  no  law  of  Parliament  should  apply  united  states 

to  the  colonies  unless  they  were  especially  mentioned  in  it.  (1765-1865), 

Perhaps  it  was  this,  perhaps  the  dread  of  interference  from  ^^' 

any  government  not  of  their  own  making,  that  caused  the  Frothmg- 

ham,  Rise  of 

colonies  more  especially  in  New  England  to  consider  Parlia-  the  Republic, 
ment  merely  an  English  legislature,  while  it  was  looked  upon  123-^27. 
in  Britain  as  the  law-making  body  of  an  empire.  At  any 
rate,  although  all  of  the  colonies  at  some  time  or  other  rec- 
ognized the  supremacy  of  Parliament  in  all  matters  except 
that  of  taxation,  they  often  bitterly  opposed  a  specific  appli- 
cation of  this  imperial  power.  Taxation  was  not  included 
because,  according  to  the  theory  of  English  and  colonial 
Liberals,  taxes  were  a  grant  of  the  people  and  not  a  legislative 
right.  This  led  them  in  time  to  argue  that  taxation  with- 
out representation  was  tyranny ;  and  that,  as  they  could  not 
be  represented  in  Parliament,  the  right  of  taxation  belonged 
exclusively  to  their  colonial  assemblies. 

73.  Political  Freedom.  — We  have  already  noticed  to  what  Popular  par- 
degree  the  colonies  were   self-governing.     Beginning   with  *"='P**'0" '" 
the   two   republics   which   elected   practically   all   of  their 
officials,  local  or  general,  we  run  through  a  series  of  changes 

until  we  find  colonies  especially  south  of  Virginia  which  had 

no   local  self-government  and  with  popular  assemblies  of 

little  power.     Except  in  New  England,  Virginia,  Maryland, 

and  Pennsylvania,  the  early  history  of  the  colonies  shows  that 

the  people  had  little  or  no  influence.     Later,  assemblies  were 

estabHshed  though  called  irregularly,  and  in  some  instances 

a  share  in  the   local  government  was  permitted.     But  for 

about  half  the  colonies  the  system  of  suffrage  was  at  all  times  Suffrage  in 

illiberal  and  largely  dependent  on  the  will  of  the  governor.  *^^  colonies. 

In  Virginia  the  suffrage  came  to  be  greatly  restricted  so  that 


6o 


The  American  Federal  State 


Colby,  in 
Lalor,  III, 
824-825. 

Cleveland, 
Growth  of 
Democracy, 
130-142. 

Bishop, 
Elections  in 
the  Colonies, 
46-97. 

See  Hart, 
Contempora- 
ries, II,  171- 
173- 


Restrictions 
on  trade ; 
navigation 
acts. 

Channing, 
§}  79.  "4- 

Beers,  Com- 
mercial Pol- 
icy of  Eng., 

153-158. 


but  a  small  portion  of  the  population  voted  at  all,  while  the 
holding  of  office  was  in  the  hands  of  the  highest  class.  In 
New  England  the  religious  qualifications  of  voters  were 
finally  abolished  (1691)  through  the  efforts  of  the  Crown, 
and  property  substituted.  This  excluded  about  nine-tenths 
of  all  adult  males  from  participation  in  colonial  elections,  and 
at  least  half  from  taking  part  in  the  town  meetings.  Even 
Rhode  Island  abandoned  her  earliest  principles  and  joined 
in  the  general  movement.  The  only  exception  was  Penn- 
sylvania, which  proved  true  to  the  principles  laid  down  by 
Penn,  but  even  here  the  voter  must  be  a  freeholder  or  have 
paid  taxes.  In  general,  we  may  say  that  during  the  eigh- 
teenth century  religious  tests  excluded  all  except  Protes- 
tants from  voting ;  while  in  the  North  property  of  a  certain 
value  was  required,  and  in  the  South  estates  of  a  certain 
size  were  necessary. 

74.  Economic  Freedom. — The  spirit  of  the  seventeenth 
and  eighteenth  centuries  was  much  less  favorable  to  economic 
freedom  than  our  own.  The  feeling  that  one  country  was 
made  wealthy  by  impoverishing  another  was  quite  common, 
and  many  felt  that  they  were  benefited  by  the  restriction  of 
the  privileges  of  others.  Colonies  were  considered  sources 
of  profit  rather  than  real  parts  of  the  mother  country.  The 
navigation  laws  passed  by  England  were  in  harmony  with 
these  ideas,  for  they  sought  to  prevent  trade  between  the 
colonies  and  other  countries  than  England,  and  discriminated 
against  all  but  EngHsh  and  American  ships.  Commerce  be- 
tween different  colonies  was  forbidden  (1673),  manufacturing 
was  practically  prohibited  (1719,  1732),  and  trade  in  the 
most  profitable  articles  of  New  England  was  greatly  ham- 
pered because  of  the  duties  on  sugar  and  molasses  (1733). 
It  is  well  known  that  these  laws  were  not  enforced  before 
1760,  but  had  that  been  done,  great  hardship  must  have 
followed.  Yet  England  was  not  alone  in  this  unwise  dis- 
crimination. Each  colony  passed  numerous  laws  of  a  similar 
character.  Foreigners,  even  Englishmen,  found  difficulty  in 
carrying  on  many  kinds  of  business.     Legislation  in  favor  of 


The  Colonial  Period  6l 


t 


the  governing  classes  was  the  rule  everywhere,  and  even  the  Narrow 
details  of  living  were  not  free  from  governmental  interference,   P°'"^y  °'  ^^^ 
Laws  to  regulate  the  price  of  labor  were  passed  at  frequent 
intervals,  though  without  effect.     Custom  often  rendered  it  ci^lfridi  evo- 
difficult  to  break  away  from  the  parental  occupation,  and  lution  of  the 
apprenticeship  regulations  hampered  mobility  of  labor.    Yet  ^*  ^"  ^'" 
in  spite  of  these  annoying  restrictions  it  may  well  be  doubted 
whether  any  other  country  on  the  globe  possessed  the  eco- 
nomic freedom  of  America. 

75.  Social  and  Other  Inequalities.  —  It  is  customary  to  make  Prominence 
a  distinction  between  the  Northern  and  the  Southern  colo-   o^  classes, 
nies,  and  say  that  classes  existed  in  one,  but  not  in  the  other.   Channing, 
While  the  South  did  possess  more  numerous  and  better  de-    (176^-1860" 
fined  classes,  the  statement  is  far  from  being  true.     Among   15, 16. 
the  whites  of  the  North,  social  lines  were  drawn  quite  sharply. 
We  cannot  show  this  better,  perhaps,  than  in  the  statement 
that  even  after  1770  the  students  of  Harvard  were  classified 
according  to  social  standing.     The  English  idea  of  social 
inequality  had  a  strong  hold  everywhere,  least,  perhaps,  in 
Pennsylvania,  and  most  in  the  South.     In  the  Middle  and 
Southern  states  there  were,  however,  elements  which  made 
classes  more  marked.     Here  we  find  in  great  numbers  two 
kinds  of  indented  servants  who  were  practically  serfs  for  a 
term  of  years.     The  first,  called  redemptioners,  bound  them- 
selves to  service  in  order  to  pay  their  passage,  the  second 
were  convicts  working  off  a  sentence.     Toward  the  latter 
class,  especially,  laws  were  very  severe,  and  treatment  was 
far  from  humane. 

Little  was  done  during  the  colonial  period  to  improve  the  Lack  of  care 
condition  of  the  poorer  or  defective  classes.  Temporary  ^o""  "nfortu- 
relief  was  given  through  special  officers,  but  no  provision 
was  made  for  the  aged,  for  the  blind,  or  the  insane.  Hos- 
pitals were  scarce,  and  the  prisons  were  of  the  worst  descrip- 
tion. Everywhere  laws  regarding  debtors  and  criminals 
were  harshly  enforced.  There  was  as  yet  little  thought  of 
the  duty  that  the  State  owed  her  unfortunate  classes. 

Outside  of  New  England  all  of  the  colonies  had  adopted 


62 


The  American  Federal  State 


Inheritance 
laws. 

Story,  Com- 
mentaries, 
^  179-181, 

Household 
and  planta- 
tion slaves. 

Hart,  Forma- 
tion of  the 
Union,  §  10. 

Channing, 
United 
States  (1765- 
1865),  12-14. 

Opposition 
to  union. 

Fro  thing- 
ham,  Rise  of 
the  Republic, 
39. 


Forces  favor- 
able to 
union. 


The  New 
England 
Confedera- 
tion. 

Channing, 
hk  73.  73- 


the  English  custom  in  leaving  the  whole  of  an  estate  to  the 
oldest  son.  In  the  Puritan  colonies,  a  double  portion  went 
to  the  eldest,  the  rest  sharing  equally. 

76.  Slavery.  —  Slaves  were  introduced  into  Virginia  as 
early  as  1619,  and  were  to  be  found  in  every  colony  in  1760. 
At  the  North,  and  at  first  at  the  South,  they  were  usually 
house  servants,  and  as  a  rule  were  treated  with  consideration, 
if  not  with  kindness.  It  was  only  when  the  whites  began  to 
employ  large  numbers  on  the  plantations  and  rice  fields 
of  the  South  that  harsh  laws  were  passed.  Yet  before  the 
Revolution  the  Southern  leaders  made  efforts  to  prevent  the 
further  importation  of  slaves,  though  without  success. 

77.  Union  before  1750 :  New  England  Confederation. — There 
was  very  little  real  unity  in  spirit  or  in  government  among 
the  colonies.  Each  had  perfected  its  own  peculiar  system 
in  such  absolute  isolation  that  the  thought  of  union  seemed 
to  mean  nothing  more  nor  less  than  a  surrender  of  rights  to 
the  very  one  who  had  refused  to  acknowledge  those  rights. 
The  reason  for  this  feeling  lay  in  the  fact  that  attempted 
union  was  ordinarily  proposed  by  the  Crown  for  the  purpose 
of  better  controlling  the  colonies,  as  had  been  the  case  when 
Andros  was  given  control  of  New  England  in  1687.  The 
fact  that  union  under  such  conditions  was  not  perfected  is, 
of  course,  an  almost  unmixed  blessing. 

There  were,  however,  other  forces  working  toward  union, 
though  none  of  them,  aided  as  it  was  by  the  many  common 
bonds  of  a  similar  language,  customs,  and  institutions,  was 
strong  enough  to  overcome  the  prejudices  of  the  people  and 
their  fear  of  the  Crown.  Among  these  forces  the  most  pro- 
nounced and  most  influential  was  the  dread  of  a  general 
Indian  uprising.  It  produced  the  New  York  Congress  of 
1690,  and  that  at  Albany  in  1 754.  It  was,  in  fact,  the  funda- 
mental cause  of  the  New  England  Confederation  of  1643. 
This  loosely  joined  league  of  four  colonies  (Massachusetts 
Bay,  Plymouth,  Connecticut,  and  New  Haven)  was  not  a  very 
high  type  of  union,  as  the  central  government  was  composed 
of  two  commissioners  from  each  member  with  a  number  of 


The  Colonial  Period  63 

nominal  powers  relating  to  matters  of  common  interest,  but  Frothing- 
absolutely  without  power  to  enforce  their  requests.     It  did     ^'"'      '• 
not  interfere  \irith  local  government  in  any  way,  as  each  , .  , 
colony  was  left  complete  control  of  its  own  affairs.     It  was  sHtution.  219- 
of  some  value  in  the  regulation  of  inter-colonial  extradition,  221. 
and  rendered  the  efforts  of  the  colonies  against  the  Dutch, 
and  much   more  against  the  Indians,  very  effective.     Its 
religious  narrowness  is  shown  by  its  refusal  to  admit  hereti- 
cal Rhode  Island  and  unbelieving  Maine,  and  its  usefulness 
was  constantly  impaired  by  the  continual  opposition  of  its 
largest  member,  Massachusetts ;  but  for  forty  years  it  not 
only  made  the  action  of  the  colonies  more  effective,  but 
trained  them  for  united  action. 

78.  Albany  Plan  of  Union.  —  Other  plans  for  union  were   Its  provi- 
not  wanting,  notably  one  proposed  by  Penn  in  1698,  and  "°"** 
many  congresses  were  held  at  which  from  two  to  five  colonies  Clark,  Civics, 
were  represented.    The  most  important  of  the  congresses  and    ^ 
the  most  valuable  of  the  plans  of  union  were  those  of  Albany  Frothmg- 

mt  -11        nam,  ibid., 

m  1754.     The  congress  was  called  to  make  a  treaty  with  the   132-151. 
Iroquois  in  order  to  prevent  them  from  aiding  the  French  in  , 
the  coming  struggle.     Seven  colonies  were  represented  by  Hist,  for 
some  of  their  best  men.     The  making  of  the  treaty  was  ^^'^'^^  Refer- 
quickly  overshadowed  by  the  recognized  need  of  military  2178. 
union.     A  plan  was  proposed  by  Franklin,  and  adopted  with 
few  changes,  which  provided  for  a  president-general  appointed 
by  the  Crown  to  be  the  executive  and  military  commander 
with  power  of  appointment.    The  colonies  were  to  be  repre- 
sented in  an  assembly  according  to  the  amount  they  paid 
into  the  treasury  of  the  union.     Although  mainly  an  advisory 
body,  this  assembly  had  power  to  levy  duties  and  colonial 
taxes  through  requisitions  upon  the  colonies,  to  which  all 
existing  rights  were  guaranteed.     While  the  plan  was  unani-  Why  it  was 
mously  adopted  by  the  congress,  it  was  universally  condemned 
by  the  legislatures  of  the  colonies,  and  failed  of  approval  in 
England.     The  remark  made   by  Franklin  regarding  this 
action  shows  at  once  the  reason  for  its  failure  and  the  feel- 
ing of  the  colonies  and  the  Crown  toward  each  other,  "  The 


64 


The  American  Federal  State 


Was  the 
colonial 
development 
"  English  "  or 
"  Ameri- 
can "  ? 

Hart,  Union, 

Wilson, 
The  State, 
^\  1060-1064. 


England  and 
America  start 
from  same 
point  (1600), 
and  develop 
along  differ- 
ent  lines. 


assemblies  all  thought  there  was  too  much  prerogative,  and 
in  England  it  was  thought  to  have  too  much  of  the  demo- 
cratic" The  time  was  not  ripe  for  concerted  action ; 
nothing  less  than  a  great  national  movement  could  create 
the  great  national  need  of  Union. 

79.  Comparison  of  American  and  English  Constitutional 
Development  (1600-1770).  —  If  the  question  were  asked  how  far 
the  constitutional  development  of  the  colonies  was  English,  our  answer 
would  depend  entirely  upon  what  was  meant  by  "  English  "  in  this  case. 
If  we  meant  English  in  the  sense  that  the  English  spirit  of  sturdy  inde- 
pendence had  been  preserved,  that  English  methods  of  steady  develop- 
ment were  clearly  apparent,  that  an  inheritance  of  English  law  and 
English  institutions  was  at  the  very  basis  of  the  whole  legal  and  political 
system,  we  should  answer  that  American  development  was  little  dif- 
ferent from  English.  But  if  we  seek  to  make  "  English  "  synonymous 
with  the  constitutional  development  of  England  from  1 600-1 770,  and 
look  upon  the  colonies  merely  as  a  part  of  England,  we  are  amazed  at 
the  difference  displayed.  In  a  sense  we  may  say  that  constitutional 
development  in  England  and  America  started  from  much  the  same 
point  in  1600,  and  under  conditions  quite  unlike  developed  along  very 
different  lines  in  the  most  natural  way  possible.  But  starting  from  the 
same  point  refers  rather  to  a  common  heritage  of  law,  liberty,  and  local 
institutions  than  to  the  more  advanced  form  of  government.  So  far  as 
local  institutions  are  concerned,  we  find  every  form  of  the  manor  and 
parish  transplanted  to  America,  and  put  into  practice  by  men  from 
almost  every  class  of  English  society.  But  in  the  development  of  cen- 
tral government,  a  totally  different  set  of  conditions  plays  the  most 
important  part.  In  the  first  place,  we  find  a  trading  company's  charter 
transformed  into  a  ^«a«'-written  constitution,  unalterable  except  by 
mutual  consent  of  the  grantor  and  the  grantee,  and  setting  a  standard 
according  to  which  laws  may  be  kept  or  set  aside.  Nothing  could  be 
more  foreign  to  that  fundamental  English  idea,  the  supremacy  of  the 
legislative  body,  whether  that  power  was  vested  in  the  Crown  and 
Parliament  or  in  Parliament  alone.  While  the  forms  of  central  govern- 
ment in  the  colonies  were  so  entirely  different  from  those  of  England 
at  first,  being  nothing  but  the  enlarged  governing  body  of  the  company, 
they  grew  to  be  more  alike.  By  degrees  conscious  or  unconscious 
imitation  led  to  the  introduction  of  the  representative  system,  the 
erection  of  a  separate  judiciary,  the  development  of  a  bicameral  system 
of  the  legislature  with  the  upper  house  a  partly  administrative  and 
partly  judicial  body  like  the  House  of  Lords,  and  a  separation  of  legis- 
lature and  executive  in  the  end  much  more  complete  than  that  which 


The  Colonial  Period  65 

existed  in  England.  At  every  step,  American  conditions  produced  a 
modifying  influence  upon  the  English  forms  introduced,  so  that  had 
England  been  in  1760  what  she  was  in  1625,  there  would  have  been 
a  great  difference  between  the  two  countries  in  the  more  complete 
separation  of  departments  in  America  and  in  the  different  relations 
of  the  departments  to  one  another.  But  the  central  government  of 
England  was  in  1760  very  different  from  that  of  1625.  The  old  system 
of  a  ministry  dependent  upon  the  King  has  been  largely  replaced  by 
one  dependent  upon  the  Parliament,  so  that  the  veto  no  longer  existed 
as  in  America.  The  English  executive  and  the  legislature  have  always 
been  in  theory  and  in  practice  but  different  parts  of  the  same  body, 
with  one  part  controlled  by  the  other,  and  even  the  bitter  contests 
between  Parliament  and  the  Stuarts  failed  to  separate  them  as  they 
were  separated  in  America,  but  gradually  shifted  the  chief  power  from 
the  King  to  the  Parliament. 

Besides  these  differences  in  the  Constitution  and  in  central  institu-  American 
tions,  there  had  grown  up  a  difference  in  civil  and  political  liberty,  conditions 
The  rough  frontier  life  had  produced  an  equality  that  could  never  exist    '"^'^^  avora- 


in  England.  Harsh  and  bigoted  as  many  of  the  colonial  laws  appear, 
they  were  in  advance  of  those  in  force  in  Europe.  Outside  of  the 
colonies  almost  the  only  persons  that  voted  for  representatives  to  a 
central  government  were  in  England,  and  yet  the  assembly  of  Massa- 
chusetts was  vastly  more  representative  than  Parliament,  and  the 
suffrage  in  Connecticut  was  five  times  as  liberal  as  that  of  Yorkshire, 
while  the  proportion  of  voters  in  Pennsylvania  was  twice  as  great  as  in 
Connecticut.  The  small  size  of  the  colonies  had  trained  a  large  class  to 
do  what  a  few  members  of  the  community  did  in  England,  so  that  the 
average  American  was  much  more  zealous  of  his  rights  than  the  average 
Englishman.  From  this  hurried  sketch  we  can  easily  see  how  far  apart 
England  and  America  had  been  carried  by  the  constitutional  develop- 
ment of  the  seventeenth  and  half  of  the  eighteenth  centuries. 


QUESTIONS  AND   REFERENCES 
Introductory  (§§  51-54) 

1.  What  was  the  European  idea  of  a  colony  ?  (Thwaites,  18-22.) 
Compare  with  the  Greek  and  the  Roman  idea.  Compare  the  Spanish 
rule  with  the  English  rule.     (Moses,  Spanish  Rule,  17-26.) 

2.  What  is  the  difference  between  a  land  grant,  a  charter,  and  a 
constitution  ?  Apply  your  definitions  of  the  last  two  to  Magna  Charta, 
Bill  of  Rights,  and  fundamental  orders  of  Connecticut. 

3.  To  what  extent  did  typography  and  church  institutions  influence 

F 


ble  to  liberty. 


66  The  American  Federal  State 

the  customs  and  institutions  of  Massachusetts,  Virginia,  and   Penn- 
sylvania ? 

4.  How  do  frontier  settlements  tend  to  modify  the  institutions  of 
any  country  which  are  transplanted  to  them  ? 

5.  What  right  had  the  King  to  change  a  charter  ?  to  recall  it  at 
wiU? 

The  Southern  Colonies  (§§  55-58) 

1.  What  English  institutions  were  brought  to  Virginia  ? 

2.  Compare  the  Virginia  charters  of  1 606, 1609,  and  1 61 2  as  to  terri- 
tory and  government, 

3.  What  influence  did  tobacco  have  upon  (a)  the  growth  of  Virginia, 
(3)  the  social  classes,  {c)  the  establishment  of  the  county  system  of  local 
government  ? 

New  England  (§§  59-62) 

a.  On  the  Puritans,  see  Eggleston,  Beginners  of  a  Nation  ;  Ellis,  in 
Winsor,  III,  219-244;  Palfrey,  iWw  England,  I,  101-132;  Osgood, 
The  Political  Ideas  of  the  Puritans,  in  P.  S.  Q.,  VI  (1891),  I-28,  201- 
231  ;   Channing  and  Hart,  Guide. 

1.  Is  the  union  of  Church  and  State  a  modern  idea  ?  Did  the  Puri- 
tans believe  in  religious  freedom  ? 

2.  How  did  the  Puritan  spirit  show  itself  in  the  dealings  of  Massa- 
chusetts with  Roger  Williams  and  with  England  ?  Was  there  any 
justification  for  their  actions  ?    Any  advantage  from  their  course  ? 

3.  Compare  the  central  governments  of  Massachusetts  in  1640, 
1687,  and  1700. 

4.  Compare  the  government  of  the  townships  and  the  counties  in 
Anglo-Saxon  England,  England  in  1600,  Massachusetts  in  1650,  and 
Virginia  in  1650. 

Middle  Colonies  (§§  63-64) 

1.  To  what  extent  has  the  compromise  system  of  local  government 
been  adopted  throughout  the  United  States  ? 

2.  Why  did  the  local  governments  of  the  colonies  influence  our  later 
history  more  than  the  central  government  ? 

3.  Did  Massachusetts  or  Pennsylvania  exert  the  greater  influence  on 
our  later  history,  and  in  what  ways  ?  In  which  were  the  political  and 
social  ideas  more  like  those  of  to-day  ? 

Colonial  Government  (§§  65-72) 

a.  On  England  and  the  colonies,  see  Larned,  3 168-3 1 73,  3'8o  ; 
Story,  Commentaries,  185-190;  Lecky,  England  in  XVIII  Century, 


The  Colonial  Period  6y 

III,  321-331,  342-345  ;  Osgood,  England  and  the  Colonies,  in  P.  S.  Q., 
II,  440-460 ;  Hueltine,  A.  H.  A.  (1894),  299-350 ;  Chalmers, 
Opinions. 

1.  Study  the  history  of  charters  in  the  Middle  Ages  and  in  modem 
times.  Can  charters  be  revoked  or  changed  in  the  United  States  at 
present  ?  Trace  the  growth  of  the  written  constitution  from  the 
charter. 

2.  Is  the  colonial  governor  a  reduced  copy  of  the  English  King  ? 
Prove  your  answer  by  comparing  their  powers,  etc. 

3.  Compare  the  assemblies  in  the  royal  colonies  with  the  House  of 
Commons  as  to  power  before  1688  and  in  1760.  Did  the  Revolution  of 
1688  have  the  same  influence  upon  the  legislatures  in  England  and  in 
America  ? 

4.  What  are  the  advantages  of  a  bicameral  over  a  unicameral  legis- 
lature ?  Judging  from  the  history  of  Europe  and  America,  is  a  legis- 
lature of  two  houses  the  natural  result  of  political  evolution  (cf.  §  256)  ? 

5.  State  what  causes  of  dispute  there  were  between  the  governors 
and  the  assemblies,  and  in  which  disputes  the  assemblies  were  successful. 

6.  Was  the  relation  of  the  King  to  the  colonies  different  in  1760 
from  what  it  was  in  1620  ?  of  the  Parliament  ? 

Liberty  and  Union  (§§  73-79) 

a.  On  union,  see  Clark,  Civics,  9-15 ;  Frothingham,  Republic, 
chaps.  II,  IV  ;  Fisher,  Evolution  of  the  Constitution,  chaps.  VI,  VII ; 
Crane  and  Moses,  Politics,  126-141. 

1.  Compare  the  civil,  political,  religious,  and  economic  freedom  of 
ancient  Rome,  Anglo-Saxon  England,  Massachusetts  in  1650,  and  Vir- 
ginia in  1650. 

2.  In  what  respects  had  the  colonists  more  or  less  political  liberty 
than  the  English  ?  Indicate  fully  different  changes  in  the  suffrage 
during  the  colonial  period.  What  differences  in  qualifications  for 
voting  existed  in  1763? 

3.  What  advantages  were  derived  by  the  South  from  slavery  before 
1763? 

4.  Enumerate  the  principal  influences  leading  to  union  during  the 
colonial  period.    Why  did  they  effect  the  North  more  than  the  South? 


CHAPTER   IV 
THE  REVOLUTION  (i  763-1 787)     ■ 
General  References 

Hinsdale,  American  Government,  52-86. 

Channing,  Student's  History,  152-255.    The  best  brief  account. 

Channing,  The  United  States  (1765-1865),  41-124, 

Hart,  Formation  of  the  Union,  42-119.  A  model  of  careful  condensa- 
tion. 

Sloane,  French  War  and  devolution,  116-388.  Gives  a  scholarly 
presentation  of  the  causes  of  the  Revolution,  though  lacking  in 
definiteness. 

Walker,  Making  of  the  Nation,  I-19. 

Green,  Short  History  of  the  English  People,  757-786.  Impartial,  English 
Liberal  view. 

Lecky  (Washburn),  American  Revolution.  The  best  English  account. 
Conservative  standpoint. 

Trevelyan,  American  Revolution.     (Part  I  published.) 

Fiske,  American  Revolution.     2  volumes. 

Fiske,  Critical  Period  of  American  History.  A  narrative  history  of 
exceptional  excellence. 

Frothingham,  Rise  oft/ie  Republic,  158-583.     Invaluable  for  facts. 

Thorpe,  Constitutional  History  of  the  American  People,  I,  I -2 10. 

Winsor,  America,  VI-VII. 

Bancroft,  United  States,  II-V;   VI,  I-194. 

Curtis,  Constitutional  History  of  the  United  States,  I,  I-230.  Ex- 
cellent. 

McMaster,  History  of  the  People  of  the  United  States,  I,  1-389,  especially 
chap.  I. 

Larned,  under  United  States. 

American  Statesman,  lives  of  Samuel  Adams,  John  Adams,  Patrick  Henry, 
George  Washington,  Benjamin  Franklin,  and  Thomas  Jefferson. 

80.  Character  of  the  Revolution. — The  colonial  period 
closed  with  the  fall  of  Quebec  and  the  transfer  of  Canada. 
The  "  French  and  Indian  "  War  brought  in  its  train  a  series 

68 


The  Revolution  69 

of  problems  the  solution  of  which  greatly  affected  the  in-   New  Eng- 
ternal  government  of  Great  Britain  and  her  relation  to  the  I'sh  policy 

conflicts 

colonies  she  already  possessed.     England  had  just  changed  with  colonial 
kings,  and  the  new  monarch  was  anxious  to  carry  out  a  ideas  of  seif- 
" strong"  policy  at  home  and  abroad  in  order  to  increase 
the  prestige  of  England,  but  through  himself  and  in  his  own   ^  ^  j^*' 
way.     The  attempt  to  solve  these  colonial  problems  which  History,  105- 
were  thrust  into  prominence  by  the  war  with  France  led   ^'*' 
the  King,  his  ministers,  and  his  Parliament  to  assert  their 
right  to  the  exercise  of  certain  powers  over  the  colonies : 
powers  which  were  perhaps  necessary  in  order  that  they 
should  be  considered  English   colonies  and  not  English 
states,  but  powers  which  had  not  been  used  to  any  appreci- 
able extent  by  their  predecessors.    The  attempt  to  enforce 
laws  made  for  the  colonies  on  this  theory  invaded  what 
some  of  the  colonies  considered  their  sphere  of  government, 
this  was  especially  true  of  the  laws  regarding  taxation.     This 
invasion  aroused  opposition,  the  opposition  produced  arbi- 
trary rule  which  in  turn  led  to  open  rebellion  on  the  part 
of  the  colonies,  and  that  meant  political  revolution. 

81.  Effects  of  the  Revolution.  —  T\\t  political  revolution  Union  of  the 
proceeded  along  two  lines,  and  the  results  produced  were  colonies  and 

*  a  '  i  separation 

simultaneous.     The  first  was  separation  from  England,  the  irom  Great 
second  union  of  the  colonies.     The  first,  being  negative  and   Britain, 
destructive  in  character,  was  accomplished  by  force  much 
sooner  than  union  was  completed,  as  that  called  for  con- 
structive political  intelligence.     But  the  effects  of  the  revo-   Resulting 
lution  were  more  than  political.     The  colonies  had  asserted  sQ^iefv^  "* 
their   right   to   self-government  and  had  appealed  to  the 
rights  of  man.     The  inevitable  consequence  was  that  the   k  jf^ 
most  glaring  inequalities,  political  and  social,  were  doomed.  _ 

The  period  immediately  succeeding  the  Revolutionary  War  cai  Period, 
saw  many  of  them  swept  away,  but  it  took  time  to  greatly  69-87. 
alter  the  estabhshed  order  of  things,  and  it  was  several 
decades  before  the  revolution  spent  its  force. 

82.  The  Situation  in  1760.  —  As  we  have  already  seen,  the 
colonies  had  been  developed  separately  before  1760,  so  that 


70 


The  American  Federal  State 


Means  of 
controlling 
the  colonies. 


Possibilities 
of  union  and 
separation. 

Scott,  Recon- 
struction dur- 
ing Civil 
War,  43-63. 

Story,  Com- 
mentaries, 
§§  162-182. 


any  control  over  them  by  England  was  over  each  colony 
and  not  over  the  colonies  as  a  whole.  There  were  in  theory 
four  ways  in  which  the  King  or  Parliament  might  exercise 
this  control:  (i)  by  regulating  the  external  trade  of  the 
colonies  without  the  levying  of  taxes  in  any  form;  (2)  by 
the  laying  of  duties  on  goods  imported  by  the  colonies ; 
(3)  by  supervision  of  internal  government ;  and  (4)  by  levy- 
ing internal  taxes.  For  reasons  that  are  best  explained  by 
the  history  of  England  from  1630  to  1760,  this  control  was 
much  more  lenient  in  practice  than  in  theory,  so  that  while 
laws  were  made  covering  the  first  three  subjects  just  enu- 
merated neither  King  nor  Parliament  had  ever  attempted  to 
lay  internal  taxes  on  the  Americans,  and  few  of  the  laws  that 
were  enacted  were  ever  enforced.  This  lack  of  careful 
administration  of  British  laws  had  made  the  colonies  content 
with  English  control,  but  had  left  the  way  open  for  a  large 
degree  of  government  by  the  people. 

Apparently,  at  least,  separation  from  Great  Britain  was 
a  long  way  off  in  1760,  and  possible  union  of  the  colonies 
seemed  little  nearer.  This  is  all  the  stranger  because  the 
colonists  differed  from  one  another  very  little  in  race  and 
general  character.  All  spoke  the  same  language,  had  much 
the  same  religion,  with  similar  restrictions  everywhere,  were 
more  or  less  alike  even  in  their  occupations.  A  common 
heritage  of  the  English  law,  the  same  political  institutions 
and  ideas,  the  same  feeling  of  pride  in  the  rights  of  English- 
men and  in  the  reasonableness  of  a  large  measure  of  self- 
government,  all  tended  to  make  union  natural  and  probable. 
The  forces  working  against  union  must  therefore  have  been 
very  powerful,  and  of  these  two  were  especially  important : 
(i)  the  fear  that  unity  meant  more  government  by  England 
and  less  by  themselves;  (2)  a  feeling  of  localism  and,  to 
some  extent,  of  sectionalism,  which  was  the  result  of  a  cen- 
tury and  a  half  of  isolation  and  separate  development,  and 
which  derived  permanent  strength  from  a  deep-rooted  belief 
that  even  if  union  did  not  increase  England's  control  over 
them,  it  would  tend  to  destroy  the  power  of  each  colony. 


The  Revolution  71 

83.  New  Colonial  Policy  of  Great  Britain  ( 1 760-1765). —  Aggressive- 

That  these  barriers  between  the  colonies  were  broken  down  "*ff  °      "^^ 

oritain. 

was  due  to  the  action  of  Great  Britain :  first,  by  enforcing 
more  strictly  the  old  laws,  particularly  the  navigation  acts, 
made  for  the  control  of  her  American  possessions;  and 
second,  in  attempting  to  assert  the  right  of  Parliament  to 
levy  internal  taxes.  This  policy  seems  to  have  been  adopted 
by  the  British  government  for  the  triple  purpose  of  paying 
part  of  the  debt  incurred  during  the  late  war  with  France, 
of  supporting  an  army  to  protect  the  colonies  from  threat- 
ened uprisings  of  the  French  and  Indians,  and  of  increasing 
its  own  power  over  the  colonies. 

As  it  was  found  practically  impossible  to  collect  the  duties  Objection  to 
under  the  navigation  acts  by  the  means  formerly  employed,  ^^^.  "^e  of 
the  collectors  resorted  to  the  use  of  writs  of  assistance,  or  sistance. 
general  search  warrants,  which  gave  them  the  right  to  invade    „, 
private  premises  and  seize  smuggled  goods  wherever  found.   §§  115-117. 
The  merchants  of  Boston  protested  against  the  use  of  the 
writs,  and  employed  James  Otis  to  defend  them  in  a  suit 
involving   their  legality.     In  a   speech   now   famous,   Otis 
claimed  that  the  writs  were  an  instrument  of  tyranny,  which 
were  unwarranted  by  the  English  constitution,  and  therefore 
in  direct  violation  of  the  rights  of  Englishmen,  to  which  the 
colonists  were  entitled  by  their  charters  and  the  laws  of  Par- 
liament.    The  court  took  no  action  for  some  months,  but 
subsequently  issued  writs  in  a  few  instances. 

To  gain  still  further  revenue  a  change  was  made  ( 1 764)    New  duties 
in  the  sugar  act  of  1 733  by  reducing  the  old  duties,  which  °"  imports, 
were  prohibitory,  but  at  this  date  it  was  expected  that  the 
necessary  money  would  be  obtained  from  internal  rather  than 
colonial  taxation. 

84.  The  Stamp  Act  (1765) .  —  This  internal  taxation,  pro-   Provisions 
posed  by  the  British  government  in  1 764  and  enacted  into  *"'^  recep- 
law  in  1 765,  was  to  be  in  the  form  of  a  stamp  tax  upon  news- 
papers, books,  deeds,  wills,  and  other  legal  papers.     It  was  ^y^„  of  the 
similar  to  one  that  had  been  tried  several  years  in  England    Union,  \\  25- 
and  was  thought  to  be  easily  collectable.     But  the  passage  '^' 


72 


The  American  Federal  State 


Channing, 
{$  1 19-124. 


The  Stamp 
Act  Congress 
and  repeal  of 
the  act. 

Channing, 
§§  125-126. 

Mace, 
Manual  of 
Amer.  Hist., 
145-151  (text 
of  dec.  of 
rights). 

Lamed, 
Hist,  for 
Reference, 
3190  (text). 


New  forms 
of  external 
taxation. 

Channing, 
kk  127-131. 


of  the  act  aroused  a  storm  from  New  England  to  the  South. 
The  agents  for  the  collection  of  the  tax  were  forced  to  resign 
before  it  went  into  effect,  rioting  and  disorder  occurred,  and 
the  whole  country  was  as  much  aroused  as  though  invaded 
by  a  foreign  foe.  Virginia  took  the  lead,  under  Patrick 
Henry,  in  passing  a  Declaration  of  Rights,  and  Massachu- 
setts followed  by  calling  on  the  other  colonies  to  take  some 
concerted  action. 

On  October  7,  1765,  representatives  of  nine  colonies  met 
in  Congress  at  New  York  and  formulated  a  Declaration  of 
Rights.  These  stated  that  Americans  were  subjects  of  the 
Crown  and  entitled  to  the  rights  of  Englishmen ;  that  the 
power  of  granting  taxes,  personally  or  through  representa- 
tives, was  one  of  those  rights ;  that  the  colonies  could  not 
be  represented  in  Parliament ;  and  that  "  no  taxes  ever  have 
been  or  can  be  constitutionally  imposed  on  them  but  by 
their  respective  legislatures."  This  was  chiefly  valuable  as 
a  formulation  of  the  colonial  view  that  the  colonies  should 
have  the  exclusive  right  of  internal  taxation ;  but,  coupled 
with  the  resistance  to  the  Stamp  Act,  it  led  to  the  repeal 
of  that  law.  The  repeal  was,  however,  accompanied  in  the 
declaratory  act  by  a  statement  of  the  imperialist  view  that 
the  colonies  are  "  subordinate  unto  and  dependent  upon  the 
Imperial  Crown  and  Parliament  of  Great  Britain  ;  and  that 
Parliament  hath,  and  of  right  ought  to  have,  full  power  to 
make  laws  and  statutes  of  sufficient  force  and  validity  to  bind 
the  colonies  and  people  of  American  subjects  to  the  Crown 
of  Great  Britain  in  all  cases  whatsoever." 

85.  The  Townshend  Acts  (1767).  —  The  union  sentiment 
created  by  the  opposition  to  the  Stamp  Act,  and  voiced  in 
the  Stamp  Act  Congress,  might  have  been  purely  temporary 
but  for  the  determination  of  the  British  government  not  to 
drop  the  matter.  The  next  method  of  exercising  control 
over  the  colonies  was  through  external  taxation,  which  in 
1 764  was  admitted  to  be  within  the  powers  of  Parliament, 
but  which  in  1767  led  to  non-importation  and  resistance. 
The  articles  subjected  to  duty  under  this  new  law  were 


The  Revolution  73 

imports  of  glass,  paper,  lead,  painters'  colors,  wine,  oil,  and 
tea,  but  all  of  these  duties,  with  the  exception  of  that  on  tea, 
were  abolished  the  next  year. 

At  the  same  time  Parliament  passed  several  offensive   Laws  inter- 
measures  of  doubtful  legality,  providing  for  the  payment  of   ['^""S  ^^'* 

,,.,,..         internal  gov- 

the  governors  without  action  of  the  assemblies,  legalizing  ernmentof 
the  writs  of  assistance  and  the  trials  of  revenue  cases  without  *e  colonies, 
juries,  and  suspending  the  New  York  assembly  because  it 
had  failed  to  vote  money  for  the  troops  quartered  in  the 
colony.  These  unjust  and  despotic  measures  called  forth 
from  the  Massachusetts  legislature  a  protest  and  a  circular 
letter  to  the  other  colonies,  setting  forth  its  objections  to 
the  Townshend  Acts  and  asking  their  cooperation.  The 
British  colonial  secretary  immediately  notified  the  governors 
to  dissolve  the  assemblies  in  case  they  accepted  this  invita- 
tion. And  so  the  trouble  grew.  Arbitrary  measures  on  the 
part  of  Britain  caused  protests  from  the  assemblies  and  dis- 
order on  the  part  of  the  colonies,  leading  in  turn  to  dissolu- 
tion of  the  assemblies  and  attempt  to  overawe  the  populace 
by  the  presence  of  troops. 

86.  The  Committee  of  Correspondence.  — The  attempt  on  the  Formed  to 

part  of  England  to  interfere  with  the  existing  government  in  the  ""''^  *^^ 

/■  /•  1  t      .      /« »  1  N  •      •  1    •      opposition  to 

most  refractory  of  the  colonies  (Massachusetts)  m  time  made  it  arbitrary 

necessary  for  the  American  leaders  to  perfect  some  kind  of  a  British 

political  organization  with  two  ends  in  view :  first,  to  continue  S°^^''"'"^"  • 

the  government  they  had  previously  used ;  and  second,  to   F'ske,  Amer. 

1  ...  /•        1  1  •!-•  i?rt'.,  1,79-81. 

unite  the  opposition  to  the  acts  of  the  mother  country.     For 

these  reasons  Samuel  Adams  had  little  difficulty  in  persuad-  ^""o'^mg- 

ing  the  different  towns  of  Massachusetts  (1772)  to  select  Republic, 

committees  which   should  define  their  rights  and  keep  in  261-274, 

279-284. 
touch  with  similar  committees  in  other  towns.     This  model 

was  adopted  the   next  year   for   intercolonial  committees 

which  were  established  in  most  of  the  colonies.      These 

committees  could  take  the  place  of  the  colonial  assembUes  if 

the  latter  were  dissolved  ;  and,  taken  together,  formed  an 

intercolonial  political  organization  of  no  small  importance.  ^ 

They  represented  a  high  degree  of  real  unity,  for  they  not 


74 


The  American  Federal  State 


Effect  of  the 
"  intolerable 
acts  "  of 
1774- 


The  Declara- 
tion of 
Rights 
(1774)- 

Curtis, 
Const' I  Hist, 
of  U.  S.,  I. 
6-17. 

Scott,  Recon- 
struction, 
66-72,  401- 
403. 


only  helped  to  unify  public  sentiment,  but  to  render  effec- 
tive any  action  that  seemed  desirable. 

87.  The  First  Continental  Congress. — Matters  were  now 
going  from  bad  to  worse.  This  disorder  in  Massachusetts, 
culminating  in  the  Boston  Tea  Party  (i  773),  induced  Parlia- 
ment to  pass  several  repressive  acts  (1774)  aimed  especially 
at  that  colony.  Not  only  was  Boston  harbor  closed  to  com- 
merce, but  a  military  government  was  appointed,  and  parts 
of  the  Massachusetts  charter  were  suspended.  So  united 
had  the  colonies  become  in  their  opposition  to  England's 
policy  that  they  made  the  cause  of  Massachusetts  their 
own,  believing  that  their  liberties  and  governments  were  no 
longer  safe  from  attack,  so  that  when  a  call  for  a  congress 
was  sounded  by  the  Massachusetts  legislature,  all  except 
Georgia  hastened  to  respond.  The  governors  were  by  this 
time  fully  alive  to  the  meaning  of  the  movement  and  dis- 
solved assemblies  and  forbade  participation  in  the  congress, 
but  without  effect.  The  people,  as  well  as  the  leaders,  felt 
that  the  time  had  come  for  them  to  act  together.  By  legis- 
latures, conventions,  or  colonial  committees  of  correspond- 
ence, delegates  were  chosen  to  meet  in  Philadelphia  in 
September,  1774. 

It  was  an  able  body  of  men  that  met  to  discuss  the  situa- 
tion ;  but  it  was  a  most  irregular  body,  lacking  legal  status, 
and  claiming  no  legislative  power.  Its  principal  acts  were 
the  making  of  addresses  to  the  people  of  Britain  and  the 
colonies,  and  the  formulation  of  a  Declaration  of  Rights. 
The  latter  reiterated  the  principles  of  1765,  and  defined 
more  explicitly  the  attitude  of  the  colonies  toward  control 
by  England.  They  claimed  for  the  legislatures  "  free  and 
exclusive  power  of  legislation  in  all  cases  of  taxation  and  in- 
ternal policy  subject  only  to  the  negative  of  their  sovereign 
in  such  manner  as  has  been  heretofore  used  and  accus- 
tomed." But  they  admitted  that  Parliament  might  regulate 
commerce  for  mutual  benefit  with  no  right  of  taxation.  It 
was  a  moderate  statement  of  the  American  view,  and  in  its 
attempt  to  make  reconciliation  with  Great  Britain  did  not 


20-36. 


The  Revolution  75 

go  as  far  as  all  the  leaders  felt  just  and  proper  in  denying  to 
King  and  Parliament  all  means  of  control  except  by  regula- 
tion of  foreign  commerce  without  revenue. 

The  influence  of  the  Congress  on  the  development  of  American 
union  was  greatly  increased  by  the  organization  of  an  Association. 
American  Association  for  non-importation  and  resistance. 
All  towns  in  the  colonies  were  to  have  their  branch  to  super- 
vise the  action  of  every  individual  in  America.  This  was 
supplemented  especially  in  New  England  by  a  military 
organization  based  upon  similar  principles. 

88.  Second  Continental  Congress.  —  Resistance  had  be-  Composition 
come  rebellion  before  the  members  of  the  second  Continen-  ^^^  powers, 
tal  Congress  assembled.  This  extraordinary  body,  the  only  Story,  Com- 
central  government  for  six  years  of  war,  had  been  called  by  xx'^T'^ 
the  Congress  of  1774,  and  was  made  up  of  members  chosen 
by  conventions  of  the  people  in  the  several  colonies.  It  const' i Hist. 
was  different  in  character  and  in  the  sentiment  it  repre-  "/  ^-  ■^•<  h 
sented  from  any  previous  Congress,  and  found  itself  face  to 
face  with  the  problems  of  war.  As  the  sole  representative  of 
the  colonies  in  union  it  could  do  no  less  than  temporarily 
act  as  the  legislative  and  directive  body  of  them  all,  since 
all  had  made  common  cause  against  Britain.  As  a  matter 
of  fact,  it  was  compelled  to  do  much  more.  It  had  hardly 
been  in  session  a  month  before  it  decided  that  there  must 
be  an  "  American  continental  army,"  and  later  in  the  year 
(1775)  action  was  taken  providing  for  privateers  and  a 
navy.  The  2  2d  of  June  it  dared  to  deal  with  the  much 
mooted  question  of  finance.  An  issue  of  paper  money  was 
ordered  and  national  loans  were  authorized.  It  boldly  took 
up  the  subject  of  trade  the  second  week  of  its  existence, 
prohibiting  that  with  Great  Britain  and  her  other  colonies, 
making  that  with  other  nations  free,  but  shutting  off  the 
slave  trade.  It  appointed  boards  to  take  charge  of  different 
matters  and  assume  relations  of  a  diplomatic  nature.  It 
advised  the  colonies  in  regard  to  the  formation  of  inde- 
pendent state  governments,  and  finally  it  declared  them 
independent  of  Great  Britain. 


76 


The  American  Federal  State 


Authority. 

Schouler, 
United 
States,  I,  13. 


Desire  for  in- 
dependence 
but  slowly 
formed. 

Hart,  Union, 
$38. 

Johnston,  in 
Lalor,  I. 
743-745- 

Sloane, 
French  War 
and  Revolu- 
tion, 216-226. 


For  the  exercise  of  all  these  powers  of  sovereignty,  it 
possessed  no  real  legal  authority.  What  it  had  rested  upon 
the  credentials  and  instructions  of  the  delegates  to  the 
Congress,  the  unquestioned  need  and  otherwise  absolute 
lack  of  a  central  organization,  the  hearty  popular  approval 
of  and  public  acquiescence  in  the  acts  of  the  Congress. 

89.  History  of  the  Declaration  of  Independence.  —  During 
the  years  from  1763  to  1776  the  continued  aggressions  of 
the  British  government  upon  the  asserted  rights  of  the  colo- 
nies had  created  an  opposition  to  her  authority  which  had 
been  steadily  developing  from  protest  and  remonstrance, 
through  threatened  revolt  and  actual  revolution  to  the  com- 
plete separation  of  Great  Britain  and  America.  The  inevi- 
tableness  of  independence  had  been  foretold  by  the  most 
ardent  American  leaders  for  years,  and  was  quite  generally 
recognized  by  July,  1776.  Beginning  with  the  Mechlenburg 
resolutions  of  1775,  counties,  towns,  and  colonies  had  been 
sending  to  Congress  memorials  asking  that  independence 
be  declared.  These  came  more  especially  from  New  Eng- 
land, as  the  Middle  colonies  and  the  far  South  up  to  the  first 
of  January,  1776,  had  remained  loyal  to  England  and  were 
opposed  to  severing  their  connection  with  her.  The  growth 
of  a  spirit  of  independence  in  all  sections,  however,  was 
much  quickened  by  the  appearance  early  in  1776  of  Paine's 
Common  Sense,  which  was  widely  read.  During  the  spring 
of  that  year  there  were  long  debates  in  Congress  on  the 
subject,  but  it  was  decided  to  wait  until  separation  was  de- 
manded by  the  majority  of  the  people.  In  spite  of  the 
opposition  of  a  large  body  of  conservatives,  this  seemed  un- 
questioned when  Congress,  on  May  15,  1776,  passed  a  reso- 
lution recommending  to  the  colonies  that  they  form  state 
governments,  and  still  less  questioned  when  Lee  introduced 
on  June  12a  resolution  stating  that  the  colonies  should  be 
free  and  independent.  A  committee  of  five,  composed  of 
Thomas  Jefferson,  Benjamin  Franklin,  John  Adams,  Roger 
Sherman,  and  Robert  R.  Livingston,  was  at  once  appointed 
to  draw  up  a  declaration  of  independence,  and  the  report  of 


and  state- 
ments. 


The  Revolution  77 

this  committee  written  by  Jefferson  was  adopted  by  the 
Congress  with  a  very  few  alterations  upon  the  fourth  of  July, 
1776. 

90.  Character  of  the  Declaration —  Independence  of  Great  its  principles 
Britain  had  been  asserted  because  the  colonies  believed  they 
had  a  right  to  govern  themselves  in  their  own  way,  and  the 
mother  country  had  not  permitted  them  to  do  this.  We  M,a  tn 
can  perhaps  see  most  clearly  why  our  forefathers  took  this  N.  A.  R.,  163 
stand  if  we  examine  certain  parts  of  the  Declaration.  The  ^^  ^  ).  i-io- 
second  paragraph,  for  example,  gives  some  of  their  views  Cf.channing 
upon  government.  "  We  hold  these  views  to  be  self-evident.  Guide,  6  137. 
that  all  men  are  created  equal,  that  they  are  endowed  by 

their  Creator  with  certain  unalienable  rights,  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness.  That  to 
secure  these  rights,  governments  are  instituted  among  men, 
deriving  their  just  powers  from  the  consent  of  the  governed. 
That  whenever  any  form  of  government  becomes  destructive 
of  these  ends,  it  is  the  right  of  the  people  to  alter  or  to 
aboUsh  it,  and  to  institute  new  government,  laying  its  foun- 
dation on  such  principles  and  organizing  its  powers  in  such 
form  as  to  them  shall  seem  most  likely  to  effect  their  safety 
and  happiness."  After  enumerating  a  long  list  of  acts  of 
George  III  which  had  aimed  to  overthrow  these  rights,  the 
signers  "  in  the  name  and  by  authority  of  the  good  people  of 
these  colonies,  solemnly  publish  and  declare,  that  these 
united  colonies  are,  and  of  right  ought  to  be,  free  and  inde- 
pendent states,  that  they  are  absolved  from  all  allegiance  to 
the  British  Crown,  and  that  all  political  connection  between 
them  and  the  State  of  Great  Britain  is,  and  ought  to  be, 
totally  dissolved ;  and  that,  as  free  and  independent  states, 
they  have  full  power  to  levy  war,  conclude  peace,  contract 
alliances,  establish  commerce,  and  to  do  all  other  acts  and 
things  which  independent  states  may  of  right  do." 

91 .  Influence  of  the  Declaration.  —  Of  the  influences  Eflfect  upon 
exerted  by  the  Declaration  within  the  United  States,  those  "^^'^"^'•'y- 
upon  nationality  and  liberty  are  most  interesting.    To  many 

of  the  patriots,  independence  declared  meant  independence 


78 


The  American  Federal  State 


Effect  upon 
liberty. 

Channing, 
§174- 


Disorder  of 
the  state 
governments 
(1775)- 
Hart,  Union, 
$39. 

Channing, 

Frothing- 
ham,  Repub- 
lic, 491-496. 


achieved.  Though,  in  their  minds,  union  was  still  necessary 
because  of  common  danger,  the  crisis  seemed  to  have  been 
passed.  State  and  local  self-government  were  no  longer 
threatened  by  the  imperial  government,  but  rather  by 
the  Congress  which  was  exercising  powers  that  the  state 
governments  felt  belonged  to  them.  Their  first  care  was 
therefore  to  restrict  the  power  of  Congress  as  much  as  pos- 
sible in  order  to  strengthen  the  states.  This  was  in  fact  the 
beginning  of  the  great  contest  between  nationality  and  states 
rights  that  lasted  almost  exactly  one  hundred  years,  but 
which  ended  in  the  states  giving  up  all  claim  to  sovereignty. 

The  effect  of  the  Declaration  upon  liberty  is  even  more 
important,  for  the  leaders  of  the  revolutionary  movement  had 
based  their  claims  upon  the  rights  of  man  and  had  pro- 
claimed equality  for  all.  In  view  of  the  social,  religious,  and 
political  inequalities  existing  in  practically  all  of  the  states, 
this,  if  it  meant  anything,  was  full  of  interesting  possibilities. 
That  it  did  mean  something  is  proved  by  the  efforts  made 
by  both  the  revolutionary  leaders  and  the  less  fortunate 
classes  to  break  down  these  barriers  —  efforts  that  produced 
during  the  next  few  years  radical  changes  which  affected 
every  state  in  the  Confederation. 

92.  The  First  State  Constitutions.  —  While  the  colonies 
were  collectively  declaring  their  independence  of  Great 
Britain,  the  colonial  governments  were  being  replaced  by 
separate  state  governments.  As  the  war  spread,  the  royal 
governors  and  their  assistants  and  the  judges  frequently 
found  it  wise  to  leave  the  country.  This  left  only  a  por- 
tion of  a  government  in  several  of  the  colonies,  in  some  of 
which  the  assemblies  began  applying  to  Congress  to  know 
what  they  should  do.  In  July,  1775,  Massachusetts  had 
been  advised  to  use  her  old  charter  and  to  disregard  the 
governor.  In  the  following  November,  New  Hampshire  had 
been  urged  to  call  a  convention  representing  the  whole 
people  in  order  to  frame  a  state  constitution,  which  it  did 
gladly.  But  it  was  on  May  15,  1776,  that  Congress  took  the 
great  step  forward  which  marked  a  new  era  in  the  history  of 


The  Revolution  yg 

independence,  union,  and  constitutional  development.    They  Congrcs- 
recommended  to  each  colony  that  it  "  adopt  such  a  govern-  Clonal  resoiu- 
ment  as  shall  in  the  opinion  of  the  representatives  of  the  15, 17-5. 
people  best  conduce  to  the  happiness  and  safety  of  their  prothing- 
constituents  in  particular  and  of  America  in  general."     This  ham,  496- 
suggestion  was  quickly  followed  by  Virginia,  which  in  conven-  ^'^' 
tion  adopted  a  constitution  embodying  not  only  a  plan  for 
the  state  government,  but  also  a  bill  of  rights.     Connecticut 
and  Rhode  Island  merely  continued  their  charters  which 
were  to  all  intents  and  purposes  republican  constitutions, 
while  most  of  the  other  states  called  conventions  for  the 
purpose,  but  only  Massachusetts  submitted  the  constitution 
framed  by  her  convention  to  the  people  for  ratification. 
The  special  significance  of  these  constitutions  lies  in  their  Significance 

relation  to  the  development  of  the  written  Constitution.    For  °^  ^^^.  w""«" 
*^  constitutions, 

the  first  time  in  history  there  had  been  adopted  a  real  writ- 
ten Constitution,  which  was  ordained  by  the  people,  was 
alterable  only  by  them,  and  which  was  above  the  govern- 
ment placing  limitations  upon  it.  At  the  same  time  there 
was  being  trained  in  these  constitutional  conventions  men 
whose  experience  and  knowledge  was  to  prove  of  the  highest 
value  in  the  formation  of  a  constitution  of  an  even  higher 
type,  the  best  the  world  has  ever  seen  —  the  United  States 
Constitution  of  1787. 

93.   Characteristics  of  the  State  Constitutions.  —  These  Influence  of 
constitutions  present  certain  marked  characteristics,  which  *^*''''^''  i^°^* 

^  ...  ernments. 

were  the  outgrowth  either  of  preexisting  institutions  or  of 

,  -    ,        .  ^,         .        ,  Fiske,  CnH- 

the  movement  of  the  times.     1  hat  is,  the  new  governments  ca/  Period, 
were  modelled  after  the  old  colonial  governments,  modified  65-69. 
by  the  ideas  most  prominent  in  1776.     For  example,  the  Bancroft, 
idea  of  the  rights  of  man  found  embodiment  in  "bills  of    United  states, 

V    III~I3(U 

rights,"  first  introduced  by  Virginia,  but  afterward  accepted 
by  almost  all  the  states  and  still  a  prominent  part  of  our  Desire  to 
state  constitutions.    The  idea  that  liberty  could  be  best  pre-  y^°'^* 
served  by  completely  separating  the  departments  of  govern- 
ment, left  a  lasting  trace  on  these  and  on  all  later  constitu- 
tions ;  but  the  fact  that  the  assembly  had  been  the  popular 


80 


The  American  Federal  State 


Predomi- 
nance of  the 
legislature. 


Constitutions 
not  demo- 
cratic. 


Articles  of 
union  pro- 
posed (1776). 

Channing, 
k  167. 

Story,  Com- 
mentaries, 
^§  221-228. 

Curtis,  Cb«j/7 
Hist.,  I.  86- 
97- 


Articles  of 
Confedera- 
tion accepted 
by  Congress 

(1777). 
and  adopted 
by  all  the 
states  (1781). 


branch  of  the  government  in  colonial  times  led  the  consti- 
tutional conventions  to  give  the  legislatures  abnormal  powers, 
while  the  governors  were  shorn  of  almost  every  attribute  of 
the  executive  office.  The  veto  was  everywhere  abolished, 
and  was  only  gradually  reintroduced  in  a  modified  form.  The 
judges  were  made  dependent  upon  the  legislature  by  method 
of  appointment,  removal  and  payment,  and  their  usefulness 
was  greatly  impaired.  Nevertheless  the  constitutions  were 
not  democratic.  The  Revolution  had  made  them  anti- 
monarchical,  but  it  did  not  produce  at  once  any  change  in 
the  franchise,  neither  did  it  make  popular  ratification  of  the 
constitution  necessary. 

94.  Formation  of  the  Confederation.  —  Although  the  pro- 
posal to  frame  articles  of  union  was  made  on  the  same  day 
as  Lee's  independence  motion,  June  12,  1776,  it  was  1781 
before  the  Confederation  was  formed.  The  fact  is,  however, 
significant  that  separation  from  Great  Britain  meant  union  of 
the  colonies,  both  in  the  thought  of  the  prominent  statesmen 
and  in  the  proposed  action  of  Congress.  A  committee  of 
one  member  from  each  state  had  been  appointed  in  June, 
1776,  and  their  report,  made  the  12th  of  July,  had  been 
secretly  debated  for  weeks.  Judging  from  this  discussion, 
most  of  the  delegates  were  willing  to  give  Congress  as  much 
power  as  it  was  then  exercising ;  but  when  the  subject  was 
reconsidered  the  next  year,  the  situation  was  radically  differ- 
ent, as  the  states  had  become  much  more  jealous  of  their 
rights,  and  demanded  that  they  be  fully  accepted  at  the 
sacrifice  of  common  interests.  The  states  had  their  way, 
and  a  union  much  weaker  than  that  suggested  in  1776  was 
proposed  in  the  Articles  of  Confederation,  accepted  by  Con- 
gress November  15, 1 777,  and  sent  to  the  states  for  approval ; 
yet  there  is  no  reasonable  doubt  that  the  feelings  of  the 
people  of  the  country  regarding  state  and  national  rights 
were  well  expressed  in  the  Articles.  To  all,  union  was  a 
necessity,  but  to  many  it  was  nothing  more  than  a  necessary 
evil.  Defective  as  the  Articles  were,  it  is  really  a  matter  of 
surprise  that  any  union  could  have  been  formed  when  we 


The  Revolution  8 1 

consider  the  intense  local  spirit  of  the  colonies,  the  extreme 
political  narrowness  that  had  marked  so  much  of  their  con- 
duct, and  the  reaction  against  nationalism  which  had  set  in 
since  1776.  As  it  was,  ratification  came  very  slowly.  By 
July,  1778,  ten  states  had  agreed  to  the  Articles,  and  Con- 
gress urged  the  others  to  give  their  consent.  May,  1779, 
saw  only  Maryland  holding  back,  and  she  refused  until  her 
powerful  neighbors  should  cede  their  claims  to  the  Western 
lands,  which  were  dangerous  to  her  own  safety.  At  last  when 
action  by  New  York  and  Virginia  seemed  to  insure  control 
of  the  lands  by  the  Congress  for  the  common  benefit,  Mary- 
land gave  her  consent.  Thus  on  March  i,  1781,  after  five 
weary  years  of  effort,  was  union  accomplished. 

95.   Character  of  the  Articles  of  Confederation.  —  What  Degree  of 
was  the  real  character  of  this  Confederation?     It  called  state sover- 

eiCTity, 

itself  a  league  of  states  which  retained  their  "  sovereignty, 
freedom,  and  independence,  and  every  power,  jurisdiction,  rl  ^^^%^ 
and  right  which  is  not  by  this  Confederation  expressly  dele- 
gated to  the  United  States  in  Congress  assembled."     This  cai Period' 
idea  that  sovereignty  resided  in  the  separate  states  and  not  93-101- 
in  the  nation  is  borne  out  by  the  provision  that  each  state,  Curtis,Cbwj/v 
whether  large  or  small,  should  have  one  vote  in  Congress,  ^isf.,i,g8- 
and  by  the  requirement  that  the  Articles  could  be  amended 
only  by  unanimous  consent  of  the  state  legislatures.    There  ^'°'^'  ^'""' 

.     .  ,  ,  men  fanes, 

were,  however,  restrictions  placed  upon   the   states  which   §^229-242. 

seemed  to  indicate  that   they  were  not   sovereign,  for  no 

state  was  permitted  to  send  ambassadors,  to  make  treaties 

with  other  states  or  foreign  powers,  to  lay  duties  that  violated 

any  treaty  of  the  United  States,  to  keep  an  army,  or  make 

war. 

The  central  government  under  the  Confederation  con-  Powers  of 
sisted  of  nothing  more  than  a  Congress  of  delegates  elected  Congress, 
by  the  states,  with  important  diplomatic,  but  unimportant 
legislative,  powers,  and  no  executive  in  theory  or  in  prac- 
tice. Its  judicial  powers  were  limited  to  jurisdiction  of 
appealed  cases  referring  to  interstate  disputes.  Its  legis- 
lative powers  included  the  right  to  issue  money,  to  make 

G 


82 


The  American  Federal  State 


Lack  of 
sovereign 
power  in  the 
United 
States. 

Federalist, 
Nos.  XV, 
XVI. 

Story,  Com- 
mentaries, 
hh  248-254, 
265-268. 


Failure 
through  lack 
of  revenue, 

Curtis, 
Const'l  Hist., 
I,  115-119. 


requisitions  on  the  states  for  sufficient  sums  to  pay  the 
expenses  of  the  government  and  men  enough  to  carry  on  a 
war,  to  build  a  navy,  and  finally  to  declare  war  and  make 
peace ;  but  for  all  matters  of  any  considerable  importance, 
the  votes  of  nine  states  were  absolutely  necessary.  As  has 
been  well  said,  the  Articles  seemed  to  have  been  formed 
for  no  other  purpose  than  to  accomplish  a  minimum  of 
result  with  a  maximum  of  effort.  But  in  one  respect  the 
Confederation  marks  a  great  advance  upon  any  preexisting 
union,  for  it  recognized  the  existence  of  interstate  citizen- 
ship, and  guaranteed  to  the  citizen  of  one  state  residing  in 
another  all  the  rights  of  citizens  of  the  latter  state. 

96.  Defects  of  the  Confederation.  —  The  radical  defect  of 
the  Confederation  was  the  lack  of  sovereign  power  in  the 
United  States.  This  showed  itself  in  many  ways.  The 
central  government  could  not  deal  with  its  citizens  except 
through  the  states,  that  is,  it  acted  on  the  states  and  not 
on  individuals.  This  was  the  reason  that  Congress  had 
the  power  to  declare  anything,  but  to  do  nothing.  In  the 
execution  of  the  laws,  in  the  obtaining  of  revenue,  in  raising 
an  army,  in  amending  the  Articles,  the  state  governments 
could  interfere  with  the  action  of  the  Congress,  and  in  some 
cases  a  single  state  could  defeat  an  important  measure  or  a 
proposed  remedy.  As  it  was  impossible  to  think  of  coerc- 
ing such  a  state  by  military  force,  the  Congress  gradually 
lost  what  power  it  nominally  possessed.  It  became  in  time 
almost  impossible  to  obtain  a  quorum  in  Congress,  as  the 
states  either  neglected  to  choose  delegates,  or  the  delegates 
did  not  think  it  worth  while  to  attend.  Congress  had  lost 
not  only  its  power  and  its  influence,  but  its  self-respect 
as  well. 

97.  The  Failure  of  the  Confederation.  —  The  failure  of  the 
Confederation  was  due,  to  a  certain  extent,  to  all  of  these 
defects,  but  especially  to  the  lack  of  power  to  control  com- 
merce (§  99)  and  the  inability  to  obtain  revenue.  While 
the  war  lasted,  the  United  States  was  fortunate  enough  to 
borrow  sums  from  France  and  Holland,  and  was  also  able 


The  Revolution 


83 


to  raise  limited  amounts  in  the  states ;  but,  as  it  was  not 
always  able  to  pay  the  interest  on  these  loans,  its  credit 
became  rapidly  poorer  after  1783.  Paper  money  had 
already  been  tried  without  success,  so  that  the  only  means 
left  Congress,  in  order  to  pay  its  expenses,  was  to  apportion 
among  the  states  the  amounts  each  was  to  pay  toward  the 
support  of  Congress.  As  there  was  no  way  of  forcing  the 
states  to  pay  these  requisitions,  and  as  the  state  finances 
were  in  themselves  quite  a  burden.  Congress  waited  in  vain 
for  even  a  small  proportion  of  what  it  had  requested.  Of 
the  fifteen  millions  asked  from  the  states  between  1781  and 
1786,  less  than  two  and  a  half  millions  were  paid  in,  whereas 
but  one  million  of  the  ten  for  which  Congress  had  petitioned 
between  1784  and  1788  found  its  way  into  the  federal 
treasury. 

Two  attempts  were  made  to  alter  the  Articles  of  Con- 
federation, so  as  to  give  the  central  government  power  to 
regulate  foreign  commerce  and  collect  for  itself  duties  upon 
imports.  In  each  case  the  amendment  was  defeated  because 
just  one  state  objected.  The  recommendation  of  February 
3,  1 781,  was  to  the  effect  that  Congress  should  have  power 
to  collect  a  five  per  cent  ad  valorem  duty,  to  be  used 
exclusively  for  the  interest  or  principal  of  the  public  debt. 
To  this  all  consented  except  little  Rhode  Island.  A  second 
proposition,  April  30,  1784,  favored  a  duty  of  five  or  more  per 
cent,  for  twenty-five  years,  upon  certain  enumerated  articles, 
with  power  to  regulate  commerce,  the  customs  to  be  col- 
lected by  federal  officials.  This  amendment  was  defeated 
by  New  York,  which  insisted  upon  collecting  the  duties  at 
its  own  ports  and  then  paying  Congress  in  depreciated  paper 
currency.  These  experiences  seemed  to  prove  that  the 
Articles  were  to  remain  the  fundamental  law  of  the  United 
States  until  forcibly  replaced  by  a  better  constitution. 

98.  Development  of  National  Conditions.  —  Fortunately, 
the  degree  of  nationality  existing  in  any  country  is  not 
always  measured  by  the  strength  of  her  national  govern- 
ment.   As  the  government  became  weaker,  the  common 


Failure  be- 
cause of  ina- 
bility to 
amend  the 
Articles. 

Curtis,  I, 
157-167- 


Mutual  in- 
terests of  the 
people  grow 
more  numer- 
ous. 


84 


The  American  Federal  State 


Uniform 
laws  needed 
for  foreign 
and  inter- 
state trade. 

Curtis, 
Consfl  Hist., 
I.  186-195. 


Land  ces- 
sions of  the 
states. 

Channing, 
\\  170-172. 

Fiske,  Criti- 
cal Period, 
187-196. 


interests  of  the  people  became  more  numerous.  During 
the  war  it  was  a  sense  of  common  clanger  that  held  them 
together;  but,  as  war  conditions  disappeared,  and  they 
returned  to  ordinary  business  life,  the  states  found  that 
they  had  more  reason  for  being  together  than  formerly. 
We  may  consider  briefly  three  things :  commerce  and  the 
public  lands  and  religious  institutions. 

99.  Need  of  National  Control  of  Commerce-  —  As  all  for- 
eign affairs  were  of  necessity  left  with  Congress,  the  regula- 
tions for  commerce  with  other  nations  would  be  uniform 
throughout  the  country.  Every  part  of  the  United  States 
felt  that  it  was  benefited  if  this  foreign  commerce  was 
increased,  and  that  they  were  correspondingly  injured  by 
the  commercial  discriminations  of  Europe,  and  by  the  fail- 
ure to  make  satisfactory  commercial  treaties.  In  interstate 
commerce  they  came  to  realize  the  even  greater  need  of 
uniform  laws.  Free  trade  between  the  states  had  not  been 
provided  by  the  Articles,  consequently  each  state  levied 
what  duties  it  pleased  on  goods  brought  in  from  its  neigh- 
bors. As  the  interstate  trade  was  large  and  growing,  and 
as  each  state  framed  its  system  of  duties  for  its  own  inter- 
ests, the  result  was  not  only  to  greatly  injure  trade,  but  to 
produce  ill  feeling  that  led  to  retaliatory  acts  on  the  part 
of  the  other  states.  Consequently,  the  need  of  national 
control  was  so  evident  that,  unless  it  could  be  obtained,  a 
state  of  affairs  bordering  on  warfare  was  inevitable. 

100.  The  Nationalizing  Influences  of  the  Public  Domain — 
Much  the  same  kind  of  national  control  was  demanded  for 
the  great  domain  in  the  West  that  had  been  ceded  by  Great 
Britain  in  the  treaty  of  peace  (1783,  §  623).  Several 
states  had  claims  to  this  land  based  on  charters,  conquests, 
or  Indian  treaties,  and  some  of  these  claims  conflicted. 
Largely  owing  to  the  attitude  of  Maryland,  which  realized 
the  danger  to  herself  from  the  further  expansion  of  states 
already  large,  these  claims  were  practically  or  wholly 
renounced,  and  the  control  of  the  land  northwest  of  the 
Ohio  was  given  to  the  Congress.    This  generous   action 


The  Revolution  85 

removed  the  danger  of  interstate  strife  that  was  present  in 

commercial  matters,  and  at  the  same  time  influenced  the 

development  of  nationality  in  a  very  positive  way,  because 

Congress  exercised  over  this  territory  without  question  very 

great  powers  for  which  it  had  no  constitutional  authority. 

The  Ordinance  of  1 787,  for  the  government  of  the  North-  Ordinance 

west  Territory,  was  what  our  German  friends  would  call  a  °  ^7  7- 

bahnbrechende   idee  —  a   path-breaking    idea.      While   the   Channing, 

territory  at  first  was  to  be  governed  by  officials  appointed 

by  Congress,  and  so  was  a  kind  of  colony  to  the  United  F'ske,  Criti- 

States,  provision  was  made  for  the  formation  of  five  states  idb-7cn. 

as   soon   as   the  population  of  any  district  reached  sixty 

,        ^,  ,,,..,  ^    Macdonald. 

thousand.     These  states  were  to  be  republican  in  clmracter,  nocumetUs, 

and  should  be  admitted  to  the   Union  on  a  par  with  all   21-29. 

other  states,  and  should  never  be  separated  from  the  United   Johnston,  in 

States.     Congress  showed  itself  in  sympathy  with  the  re-   ^'°'''  ^^''• 

forming  spirit  of  the   times  when  it  declared  that  there 

should  be  perfect  religious  liberty,  that  slavery  should  never 

exist  in  the  territory,  that  education  should  be  at  public 

expense,  and   that   estates   should   be  shared  equally  by 

children  of  both  sexes. 

loi.   National  Religious  Organizations. — Before  the  Rev-  National 
olutionary   War   almost   every   colony   had   an  established  churches 
church  which  received  support  from  the  colony ;  but  while 
each   colony  had   church  institutions  these  never  crossed   cai  Period, 
colonial  lines.     In  other  words,  although  there  might  be  83-87, 
members  of  the  Church  of  England  in  every  colony,  the 
church  organizations  were  unconnected.     After  the  war,  the 
national  sentiment  of  the  people  led  to  the  formation  of 
national  churches.     Out  of  the  old  Churches  of  England 
grew  the  American  Episcopal  Church.     In  1784  the  Metho- 
dists held  their  first  national  gathering,  while  in  1788  the 
Presbyterian  Church  of  America  was  organized. 

102.   Religious  Liberty.  —  At  the   same   time    changes  Abolition  of 

were  occurring  in  the  structure  of  society.     None  of  the  restrictions 

^  and  disquah- 

mequalities   of  the   colonial   period  wholly  withstood   the  fications. 

undermining  influence  of  the  Revolution.     In  practically  all 


86 


The  American  Federal  State 


Fiske,  Criti- 
cal Period, 
76-82. 


Many 

inequalities 

removed. 

Fiske,  Criti- 
cal Period, 
70-76. 


Property  still 
the  basis 
of  the 
franchise. 

Thorpe, 
Const' I  Hist., 
1, 191-310. 


of  the  state  constitutions  adopted  during  the  war  religious 
qualifications  were  required  of  public  officials,  and,  in  some 
cases,  of  voters,  while  in  many  cases  clergymen  were  not 
allowed  to  hold  office  (Appendix  G,  Table  I).  These  re- 
strictions existed  especially  in  the  South  and  in  New  Eng- 
land until  swept  away  by  the  democratic  movement  of 
this  century,  but  many  of  them  were  abolished  during  the 
Confederation.  In  this  great  movement  Jefferson  and  Madi- 
son took  the  lead  by  securing  the  disestablishment  of  the 
Virginia  church  and  the  aboHtion  of  church  qualifications 
as  well.  The  influence  of  the  example  set  by  the  Ordinance 
of  1787  in  this  as  in  other  reforms  was  of  the  highest 
importance. 

103.  Class  Distinctions. — The  most  noticeable  changes 
in  the  relations  of  classes  is  that  dealing  with  the  negro 
slaves,  but  others  were  occurring  which  lightened  the  bur- 
dens of  indented  servants  and  did  away  with  many  of  the 
inequalities  of  class  legislation.  The  general  tendency  was 
to  abolish  primogeniture  where  that  existed  and  substitute 
for  it  the  equal  partition  of  the  property  of  the  deceased. 
In  the  attempt  to  abolish  the  slave  trade  the  Middle  and 
the  Southern  states  led  the  way.  Emancipation  had  been 
practically  completed  in  New  England  before  1787  and  was 
making  good  progress  in  the  Middle  states,  but  gained  no 
foothold  south  of  Virginia. 

104.  Political  Qualifications.  —  Considering  the  statement 
that  "all  men  are  created  equal,"  it  took  a  long  time  for  people 
of  the  eighteenth  century  to  realize  that  man  as  man  had  any 
right  to  a  part  in  the  government.  While  the  requirements 
of  colonial  times  were  essentially  modified,  property  re 
mained  the  basis  of  the  franchise  until  the  close  of  the  cen- 
tury. Vermont,  New  Hampshire,  and  later  Kentucky  did 
something  toward  making  suffrage  universal ;  but  in  the 
older  states  property  qualifications  were  the  rule,  officials 
being  required  to  have  a  greater  amount  than  voters.  Even 
the  liberal  ordinance  for  the  Northwest  Territory  required  a 
freehold  of  fifty  acres  before  one  could  cast  a  ballot. 


The  Revolution  8/ 

105.   Condition  of  United  States  in  1787.  —  By  1 787,  then,  Social  prog- 
much  had  been  done,  yet  more  remained  to  be  done.     The  ""^^^  "°' 

great  before 
changes  produced  by  the  Revolution  had  not  been  radical  1787. 

either  in  their  nature  or  in  the  method  by  which  they  were 
produced.  The  spirit  of  the  Revolution  was  a  leaven  that 
had  permeated  society,  not  a  charge  of  dynamite  destroy- 
ing existing  institutions.  The  old  system  was  undergoing  a 
change ;  we  cannot  say  it  had  been  changed.  There  was 
still  an  absence  of  the  nineteenth-century  humanitarian 
spirit. 

In  the  affairs  of  national  government  we  had  reached  the  Weakness 

lowest  ebb.     We  did  not  command  respect  as  a  nation :  °^  *?*  , 

^  national 

Other  powers  would  make  no  treaties  with  us ;  our  credit  government. 

was  gone ;  our  commerce  flourished  in  spite  of  the  condi- 
tions, rather  than  because  of  them.  To  the  general  internal 
difficulties  had  been  added  a  period  of  financial  depression 
productive  of  cheap  paper-money  and  a  serious  revolt  in 
Massachusetts,  called  Shays's  Rebellion.  Thinking  men  be- 
lieved that  many  of  these  evils  were  due  to  the  weakness  of 
the  central  government,  and  had  already  begun  to  take  steps 
to  have  that  government  reorganized. 


QUESTIONS  AND   REFERENCES 
General  (§§  80-82) 

1.  What  is  a  revolution?  Show  the  difference  between  a  revolu- 
tion and  a  revolutionary  war;  between  a  social  and  a  political  revo- 
lution; a  financial  and  a  military  one.  Give  examples  of  each  in 
history.     (Cf.  §  36.) 

2.  Is  it  true  that  "  a  revolution  is  a  successful  rebellion  "  ? 

3.  Who  began  the  American  Revolution?  To  what  extent  was  the 
Revolution  due  to  social,  to  political,  to  economic  causes? 

4.  What  is  meant  by  nationality?  by  the  spirit  of  nationality? 
Can  nationality  exist  without  national  political  institutions?  without 
national  religious  institutions?    Can  it  continue  without  these? 

5.  What  is  the  difference  between  localism  and  sectionalism? 
Which  is  more  opposed  to  nationality?  Under  what  conditions  might 
each  help  to  develop  nationality?  under  what  to  binder  it? 


88  The  American  Federal  State 

6.  What  was  the  influence  of  the  Revolution  upon  English  poli- 
tics?    Did  it  produce  changes  that  resulted  in  political  freedom? 

7.  Trace,  if  possible,  the  influence  of  our  Revolution  upon  that  of 
France.  Compare  them  as  to  causes,  character,  relation  to  the  rest 
of  the  world,  and  results,  noting  principal  similarities  and  differences. 
Account  for  these. 

England  in  1760 

a.  On  the  character  and  policy  of  George  III  compare  Fiske, 
Green,  Trevelyan,  Lecky,  Walgrave  in  Hart's  Contemporaries,  II. 

b.  For  the  character  and  composition  of  Parliament  see  Fiske,  I, 
32-35;  Green,  764-766;   Lecky,  185-188. 

c.  The  difference  between  "  virtual  "  and  "  territorial "  representa- 
tion is  given  in  Channing,  Students  History,  §§  122-123. 

1.  Describe  the  condition  of  English  politics  under  George  II.  In 
what  respects  was  the  English  policy  of  George  III  different  from  that 
of  George  II?  in  what  the  colonial  policy? 

2.  From  what  kinds  of  districts  were  the  members  of  the  House  of 
Commons  elected?  What  influence  did  the  Lords  have  over  these 
elections?  To  what  extent  was  the  House  of  Commons  controlled 
through  bribery? 

3.  What  difference  was  there  between  the  English  and  the  Ameri- 
can idea  of  representation  in  1760? 

The  Beginnings  of  Conflict  (§§  83-S5) 

a.  On  the  colonies  in  1760,  see  Montgomery,  Student'' s  American 
History,  143-162;  Channing,  United  States  (1765-1865),  chap.  I; 
Thwaites,  Colonies,  chaps.  V,  VIII,  X;  Lodge,  English  Colonies; 
Channing  and  Hart,   Guide,  §  133. 

1.  What  claim  had  the  colonies  to  the  exclusive  right  of  taxation 
based  upon  the  charters?  upon  the  expressed  consent  of  the  British 
government?  upon  the  implied  consent?  upon  the  results  of  the 
contests  between  the  governors  and  the  assemblies? 

2.  Is  taxation  without  representation  always  tyranny?  If  not 
always,  when  is  it,  and  when  not  ?  Have  we  any  instances  now  of 
taxation  without  representation? 

3.  What  provisions  of  the  Townshend  Acts  violated  American 
principles  of  government,  and  in  what  ways  ? 

Intercolonial  Union  (§§86-88) 

I.  Did  the  spirit  of  union  precede  organized  union?  Was  the 
spirit  of  union  ever  fully  represented  by  the  character  of  the  organiza- 


The  Revolution  89 

tion  ?    Which  was  of  greater  value  to  unity,  a  congress  or  organizations 
like  the  committees  of  correspondence  ?     Why  ? 

2.  Compare  the  Congresses  of  1754,  1765,  and  1774,  as  to  reasons 
for  which  called,  number  of  colonies  represented,  method  of  choosing 
delegates,  degree  of  unity  shown,  work  of  the  Congress,  and  influence 
on  permanent  union.     Make  table. 

3.  Compare  the  Declarations  of  Rights  (1765  and  1774)  and  the 
Declaration  of  Independence,  showing  basis  of  claims,  deductions  from 
these  premises,  and  the  growth  of  the  idea  of  complete  self-government. 

Union  and  Independence  during  the  VITar  (§§  89-93) 

a.  On  first  state  constitutions  consult  Fisher,  Evolution  of  Consti- 
tution, "jo-ig;  Schouler,  Constitutional  Studies,  zg-dg;  Thorpe,  Con- 
stitutional History,!,  60-100;  MoxtymA.A.A.,  IV,  201-232;  Poore's 
Charters  and  Constitutions ;  Channing  and  Hart,  Guide,  §  143;  W.  C. 
Webster  in  A.  A.  A.,  IX  (1897),  380-420. 

1.  Was  independence  inevitable?  In  what  section  was  opposition 
to  the  Declaration  most  prominent,  and  why?  What  effect  did  the 
Declaration  have  on  parties  in  the  United  States?  on  our  standing 
abroad  ? 

2.  Make  a  study  of  the  Declaration.  Do  you  find  any  ground  for 
the  misquotation  that  "all  men  are  created  free  and  equal"?  What 
do  you  think  of  the  bases  of  the  argument  in  paragraph  2  ?  of  the 
argument  itself  ? 

3.  Of  the  reasons  assigned  for  separation,  which  ones  deal  with  acts 
illegal  in  English  law?   which  ones  were  opposed  to  colonial  practice? 

4.  Was  democracy,  as  we  understand  it,  the  natural  consequence 
of  the  Declaration?  Trace  the  influence  of  the  Declaration  in  equaliz- 
ing conditions  since  1776. 

5.  Considering  the  action  of  Congress  in  the  formation  of  state 
governments,  could  the  states  justly  claim  to  have  been  sovereign  at 
any  time? 

6.  Show  how  the  revolutionary  state  constitutions  illustrate  the 
truth  that  lies  in  the  natural  theory  of  the  origin  of  the  State.  In  the 
contract  theory  (§§  6,  7). 

The  Confederation  (§§  94-105) 

1.  Compare  the  Articles  with  Franklin's  plans  of  union  in  1754  and 
1775  and  the  second  Continental  Congress  as  to  form  of  government, 
representation  of  states,  and  powers  of  Congress. 

2.  Is  it  true  that  the  Confederation  really  represented  a  higher 
form  of  union  than  Congress  in  1776?    Give  your  reasons  in  full. 


90  The  American  Federal  State 

3.  Enumerate  specific  defects  of  the  Confederation. 

4.  What  influence  did  separation  from  Great  Britain  after  1776 
have  upon  the  development  of  national  conditions?  What  part  has 
commerce  played  in  the  centralization  of  states  and  governments  in 
history? 

5.  To  what  extent  did  the  United  States  allow  its  public  domain  to 
be  self-governing?  In  what  ways  has  our  national  territory  been  held 
in  a  colonial  relation  to  the  central  government?  (see  §  628). 

6.  In  what  ways  did  the  Ordinance  of  1787  reflect  the  reforming 
movement  of  the  times,  and  how  did  its  provisions  in  turn  influence 
the  West?   the  East? 

7.  For  what  reason  did  the  new  laws  of  inheritance  favor  the  de- 
velopment of  democracy? 


CHAPTER  V 

THE  CONSTITUTION  (i  787-1 789) 
General  References 

Hart,  Formation  of  the  Union,  120-135. 

Channing,  Studenfs  History,  255-275. 

Walker,  Making  of  the  Nation,  19-62. 

Hinsdale,  American  Government,  87-143.     An  excellent  summary. 

Johnston,  in  Lalor's  Cyclopedia  under  Constitution,  Compromises,  State 
Sovereignty,  etc. 

Fiske,  Critical  Period,  220-344. 

Curtis,  Constitutional  History,  I,  235-697. 

Bancroft,  History  of  the  United  States,  VI,  I95-474. 

Madison,  Debates  in  the  Federal  Convention.  By  far  the  best  contem- 
porary account.     (Volume  V  of  Elliott's  Debates.) 

Hamilton,  Madison,  and  Jay.  The  Federalist.  The  best  contemporary 
explanation  of  the  completed  constitution. 

Elliott,  Debates.  5  volumes.  Gives  journal  of  the  convention  and 
speeches  on  ratification  in  the  states. 

Meigs,  Growth  of  the  Constitution.  Traces  the  development  of  each 
section  to  its  final  form. 

Jamieson,  etal.  Essays  in  the  Constitutional  History  of  the  United  States. 
For  further  bibliographies  consult : 

Channing  and  Hart,  Guide,  §§  154-157. 

Ford,  in  Bancroft,  History  of  the  Constitution,  II. 

Foster,  References  on  the  Constitution. 

106.  Feeling   regarding   a    Constitutional  Convention.  —  Favored  by  a 
The   need  of  a  constitutional   convention   to   remedy   the  ^t^ 
Articles  of  Confederation  had  been  recognized  before  those 
articles  went  into  operation.     As  early  as  1780  Paine  and  cat  Period, 
Hamilton  had  suggested  such  a  convention,  and  in  1785   214-223. 
Bowdoin,  governor  of  Massachusetts,  definitely  instructed   CnTt\s,Const'i 
her  representatives  in  Congress  to  have  one  called.    The  ^"^<  '•  '»*^- 
serious  defects  of  the  Confederation  had  been  emphasized 

91 


232. 


92 


The  American  Federal  State 


The 

Annapolis 

conference. 

Hinsdale, 
}{  166-168. 

Curtis,  I, 
232-236. 


To  revise  the 
Articles  of 
Confedera- 
tion. 

Curtis,  I, 
237-245- 


by  Peletiah  and  Noah  Webster  in  1 780,  and  were  realized 
by  all  the  leading  men  of  the  country ;  but  the  desire  for  a 
convention  to  remedy  these  defects  were  not  widespread. 
It  was  necessary  for  a  few  earnest  spirits  to  take  advantage 
of  conditions  by  summoning  a  convention  representing  all 
the  states.  The  favorable  opportunity  arrived  when  Madi- 
son persuaded  the  Virginia  legislature  to  invite  all  the  other 
states  to  attend  the  Annapolis  conference  held  by  Maryland 
and  Virginia  for  the  purpose  of  regulating  commercial  inter- 
ests. The  subject  proposed  for  discussion  was  the  condition 
of  commerce  and  trade  throughout  the  Union.  As  dele- 
gates from  but  five  states  were  present,  Hamilton  urged 
an  adjournment  in  order  that  all  the  states  might  be  repre- 
sented in  a  larger  convention  at  Philadelphia  the  next  year. 
The  Annapolis  delegates  then  accepted  the  draft  of  a  cir- 
cular letter  to  the  states  for  a  convention  "  to  revise  such 
further  provisions  as  shall  appear  to  them  necessary  to  render 
the  constitution  of  the  federal  government  adequate  to  the 
exigencies  of  the  Union,  and  to  report  to  Congress  such 
an  act  as,  when  agreed  to  by  them,  and  confirmed  by  the 
legislatures  of  every  state,  would  effectually  provide  for  the 
same." 

107.  The  Purpose  of  the  Convention.  —  Congress  resented 
the  action  of  the  Annapolis  Convention  in  calling  a  consti- 
tutional convention,  and  refused  to  give  its  consent  to  the 
Philadelphia  meeting,  but  in  February,  1787,  after  seven 
states  had  appointed  delegates,  and  New  York  had  taken 
away  the  last  hope  of  regular  amendment  of  the  Articles  by 
refusing  to  vote  the  impost,  the  absolute  need  of  such  an 
assembly  became  apparent,  and  Congress  gave  its  indorse- 
ment by  calling  a  convention  of  its  own  to  meet  at  Phila- 
delphia at  the  same  time.  This  was  summoned  "for  the 
sole  and  express  purpose  of  revising  the  Articles  of  Confed- 
eration and  reporting  to  Congress  and  the  several  state  legis- 
latures such  alterations  and  provisions,  therein,  as  shall, 
when  agreed  to  by  Congress  and  confirmed  by  the  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies 


The  Constitution  93 

of  government  and  the  preservation  of  the  Union."  As 
each  state  instructed  its  delegates  in  substantially  the  same 
terms,  the  convention  was  technically  limited  to  revising  the 
Articles  of  Confederation.  If  it  failed  to  do  this,  it  was  left 
one  of  two  alternatives,  —  to  form  a  new  and  stronger  con- 
federation, or  a  still  stronger  government  on  a  different  basis. 

108.  The  Members.  —  The /^rjo««(?/ of  the  convention  was  of  a    Prominent 

very  high  order.     This  was  unquestionably  the  ablest  body  of  men    delegates 

that  had  ever  sat  to  discuss  the  political  affairs  of  America.     Strangely    /^"^  ' ' 

lerent  states, 
and  yet  naturally  enough  the  most  intense  leaders  of  the  pre-revolu- 

tionary  period  were  not  there.  Some,  like  Henry  and  Lee,  had  refused  Walker, 
to  serve  as  delegates;  while  others,  like  Jefferson,  were  occupied  with  Nation,  22- 
foreign  affairs.  On  the  whole,  the  absences  cannot  be  regretted,  for  ^' 
most  of  these  men  were  little  suited  to  the  work  of  making  a  Consti- 
tution for  a  nation.  But  the  members  of  the  convention  were  by  no 
means  unknown  men.  Franklin,  the  ablest  statesman  of  the  previous 
generation,  though  now  in  his  decline,  rendered  invaluable  aid  in  pre- 
serving a  spirit  of  harmony,  and  with  the  noble-minded  Washington 
did  much  to  give  the  Convention  prestige  with  the  people.  Sherman, 
of  Connecticut,  had  been  on  the  committee  that  wrote  the  Declaration 
of  Independence,  and  like  his  colleague,  Ellsworth,  was  a  man  of 
excellent  judgment.  Massachusetts  sent  four  men  of  prominence. 
Hamilton,  of  New  York,  was  in  many  ways  the  ablest  man  present, 
but  contributed  little  to  the  details  of  the  final  plan  because  his  ideas 
of  central  government  were  out  of  sympathy  with  any  that  could  be  used, 
and  his  vote  was  cancelled  by  those  of  two  very  narrow-minded  men. 
From  Virginia  and  Pennsylvania  came  the  men  whose  influence  was 
from  first  to  last  the  greatest.  The  scholarly  Madison,  with  his  broad 
knowledge  of  historical  institutions  and  his  deep  insight  into  the  evils 
of  the  time,  was  ably  supported  by  Wilson,  the  clear-thinking  Scotch- 
man, who  possessed  ideas  that  remind  us  of  the  America  of  to-day 
more  than  of  America  in  1787.  From  Pennsylvania  came  also  the 
quick-tempered  but  able  Gouverneur  Morris,  to  whom  was  assigned 
the  task  of  making  the  final  draft  of  Constitution,  while  the  South 
sent  Rutledge  and  the  two  Pinckneys. 

109.  The  Question  of  Nationalism. — The  Convention  was  Organization 
called  to  order  at  Philadelphia  on  the  25th  of  May,  1787,  ^^^ sessions, 
with  delegates  from  nine  states  present.     It  closed  its  ses- 
sions on   the   17th  of  September,  every  state  but  Rhode 

Island  having  been  represented  during  most  of  that  time. 


94 


The  American  Federal  State 


The  Virginia 
plan. 

Elliott, 
Debates,  V, 
127-128. 

Fiske,  Criti- 
cal Period, 
236-242. 


Of  the  sixty-two  delegates  appointed,  only  fifty-five  reported 
and  but  thirty-nine  signed  the  final  draft. 

The  first  business  was  the  selection  of  a  chairman,  George 
Washington,  and  the  making  of  rules,  of  which  the  two  most 
important  were  that  sessions  should  be  secret  and  that  each 
state  should  have  one  vote.  On  the  fifth  day  Randolph,  of 
Virginia,  offered  a  plan  drawn  up  by  Madison  and  approved 
by  the  delegates  from  that  state.  It  is  popularly  called  the 
Virginia  plan.  As  stated  in  the  first  article,  its  object  was 
to  correct  and  enlarge  the  Articles  of  Confederation.  For 
this  purpose  there  was  to  be  national  government,  composed 
of  a  legislature,  executive,  and  judiciary.  The  legislature 
was  bicameral,  the  lower  house  being  elected  by  the  people, 
and  the  upper  house  chosen  by  the  lower  out  of  persons 
nominated  by  the  state  legislatures.  This  national  legisla- 
ture was  to  have  not  only  the  legislative  rights  of  the  exist- 
ing Congress,  but  "  moreover  to  legislate  in  all  cases  to 
which  the  separate  states  are  incompetent,  or  in  which  the 
harmony  of  the  Union  may  be  interrupted  by  the  exercise 
of  individual  legislation,  to  negative  all  laws  passed  by  the 
several  states  contravening,  in  the  opinion  of  the  National 
Legislature,  the  Articles  of  Union,  or  any  treaty  subsisting 
under  the  authority  of  the  Union,  and  to  call  forth  the  force 
of  the  Union  against  any  member  of  the  Union  failing  to  do 
its  duty  under  the  articles  thereof"  There  was  to  be  a 
competent  executive  elected  by  the  national  legislature, 
which  was  not  reeligible,  and  which,  with  a  certain  number 
of  judges,  should  have  a  suspensory  veto  upon  laws  of  the 
national  and  state  legislatures.  A  judiciary  was  to  be  estab- 
lished with  jurisdiction  in  cases  of  interstate  dispute,  piracy, 
impeachment,  etc.  Provision  was  made  for  the  admission 
of  new  states,  for  guaranteeing  representative  government 
to  each  state,  and  for  all  state  officers  to  take  an  oath  to 
support  the  Articles  of  Union.  The  Constitution  was  to  be 
ratified  by  conventions  in  the  several  states,  and  to  be 
amended  without  the  necessary  assent  of  the  national  legis- 
lature. 


The  Constitution  95 

We  can  see  at  a  glance  how  different  this  plan  was  from  Comparison 
the  Articles  in  use.    Although  not  instituting  what  we  should  '^^^.  ^^^ 
call  a  really  popular  government,  it  certainly  was  national.   Confedera- 
The  negative  upon  state  laws  and  the  legal  use  of  force  to  ^'°°- 
coerce  a  state  seem  indeed  to  threaten  local  self-govern- 
ment ;  but  these  features  were  dropped  at  once  for  lack  of 
support.     It  suggested  what  is  on  the  whole  a  reasonable 
scheme  —  one  in  fact  that  with  modifications  we  have  put 
into  practice. 

no.  The  Contest  over  Nationalism.  —  The  next  day,  May  Virginia  plan 

xo,  in  the  committee  of  the  whole,  it  was  moved  that  a  ^'^^P*^'^ '" 
•^   '  '  committee  of 

Confederation  based  on  treaties  between  sovereignties  was  the  whole, 
insufficient,  and  moved  further  "  that  a  National  government   Johnston  in 
ought  to  be  established  with  a  supreme  Legislative,  Execu-   Laior,  I.547- 
tive  and  Judiciary."     The  second  part  of  the  motion  was  ^^' 
adopted  by  a  vote  of  six  to  one.     This  was  certainly  not  Fiske,  Crit- 
equivocal,  though  later  discussion  showed  that  some  mem-  L'L-244.    ' 
bers  did  not  fully  understand  what  was  meant  by  the  word 
national.     During  the  next  two  weeks  the  debate  (still  in 
committee  of  the  whole)  was  limited  to  the  different  reso- 
lutions of  the  Virginia  plan,  and  at  the  end  of  that  time  the 
Virginia  plan  was  accepted   by  the  committee  with  some 
alterations,  such  as  dropping  the  clauses  referring  to  the 
negative  on  state  laws,  to  coercion,  and  the  one  providing 
for  a  council  of  revision,  and  modifying  certain  of  the  details. 
This  called  forth  from  the  conservatives  and  delegates  from 
the  small  states  a  scheme  known  as  Xht  New  Jersey  Plan.  The  New 
It  favored  amendment  of  the  Articles  of  Confederation  so  J^"^y  ^'^"• 
as  to  create  an  executive  elected  by  Congress,  and  a  judi-  Fiske,  245. 
ciary,  with  appellate  jurisdiction,  appointed  by  the  execu- 
tive.   Congress  was  given  power  to  levy  duties  and  internal 
taxes,  and  its  legislation,  together  with  the  treaties,  was  made 
the  supreme  law  of  the  land.     Provision  was  made  for  the 
admission  of  new  states,  and  for  a  uniform  rule  of  naturali- 
zation. 

With  this  greatly  improved  scheme  of  confederation  before 
it,  issue  between  nationalism  and   particularism  was  fairly 


96 


The  American  Federal  State 


Virginia  re- 
ported by 
committee  of 
the  whole. 

Fiske,  246- 


Necessity  of 
compromise. 


Representa- 
tion con- 
sidered in 
committee 
of  the  whole. 


Connecticut 
compromise. 

Fiske,  250- 
253. 


joined  in  the  convention.  On  June  19  the  members,  still 
in  committee  of  the  whole,  voted  to  rise  and  report  the 
Virginia  plan.  The  vote  stood  seven  to  three  —  in  some 
respects  a  division  between  large  and  small  states.  At  all 
events,  it  was  a  decisive  victory  for  the  national  party. 
But  the  same  day,  in  order  to  avoid  bad  feeling,  the  word 
national  \iz.%  dropped,  and  the  legislature  was  hereafter  called 
Congress. 

Later  on  the  plan  was  modified  by  introducing  the  federal 
principle  in  the  composition  of  the  Senate,  and  still  later 
other  federal  features  were  embodied.  It  was  absolutely 
necessary  that  this  should  be  done,  for  although  the  states 
favoring  nationalism  had  been  in  the  majority  and  had  carried 
their  point,  and  could  probably  have  won  in  the  contest 
over  representation  in  the  Senate,  the  victories  would  have 
been  dearly  bought,  since,  even  had  the  Convention  failed 
to  break  up,  which  is  unlikely,  the  Constitution  would  never 
have  been  adopted  by  the  people. 

III.  The  Compromise  over  Representation  in  Congress. — 
It  had  been  decided  the  first  week  the  convention  was  in 
session  that  the  members  of  the  lower  house  should  be  elected 
by  the  people  of  the  states,  and  later  it  was  agreed  that  their 
number  should  be  in  proportion  to  the  free  population  and 
three-fifths  of  all  others.  At  this  time  a  motion  to  have 
equal  representation  in  the  Senate  was  lost  by  a  vote  of  five 
to  six,  and  the  large  states  then  adopted  the  same  rule  for 
the  Senate  as  for  the  House  of  Representatives. 

As  this  was  done  in  the  committee  of  the  whole,  nothing 
was  said.  It  was  an  entirely  different  matter,  however,  when 
the  subject  was  taken  up  in  the  convention,  June  28.  They 
decided  that  the  states  should  not  be  equally  represented  in 
the  lower  house,  but  could  do  nothing  more,  so  referred  the 
matter  to  a  committee.  The  committee  favored  equal  repre- 
sentation in  the  Senate,  giving  the  House  power  to  originate 
all  money  bills.  This  was  not  at  all  satisfactory  to  the  large 
states,  for  they  considered  the  financial  right  of  little  value. 
Day  after  day  of  bitter  debate  was  passed  without  solving 


The  Constitution  07 

the  difficulty.  The  small  states  were  determined  to  win  or 
withdraw,  and  the  large  states  finally  accepted  defeat  as 
the  lesser  evil.  It  was  then  decided  to  allow  the  states  to 
be  represented  in  the  House  according  to  population,  rating 
negroes  at  three-fifths  of  their  number,  and  to  give  each 
state  two  members,  each  having  a  vote,  in  the  Senate.  This 
concession  won  for  the  Constitution  both  during  the  conven- 
tion and  afterward  the  complete  support  of  the  small  states, 
and  left  the  chief  issue  of  the  Convention  the  question  of 
slavery. 

112.  Other  Questions  and  Compromises.  —  The  conduct  of  Theadjust- 
the  small  states  had  been  directed  by  the  feeling  that  "  self-  '""''  °^  ^''^^\ 

•'  °  and  sectional 

preservation  is  the  first  law  of  nature,"  and  there  is  no  doubt  interests. 

that  they  believed  consolidation  of  the  Union  to  be  a  real 
danger  to  them.  In  later  discussions,  the  chief  difficulties 
lay  in  devising  a  scheme  that  would  promote  as  many  sec- 
tional interests  as  possible.  As  the  advantage  of  one  section 
was  often  thought  to  be  the  disadvantage  of  another,  and  as 
each  section  threatened  to  withdraw  unless  its  demands  were 
recognized,  the  only  possible  union  lay  through  further 
compromise. 

In  addition  were  the  numerous  details  which  involved  no 
great  principle,  but  whose  proper  adjustment  meant  so  much 
to  the  administrative  success  or  failure  of  the  new  Con- 
stitution. 

113.  The  Three-fifths  Compromise.  —  It  had  been  decided  The  count- 
early  in  the  convention  that  when   representatives   in   the  '"^° 

^  ^  negroes. 

lower  house  were  apportioned  among  the  states  or  when 
direct  taxes  were  levied  upon  them,  the  number  of  members  ^  ^'  '^^ 
or  the  amount  of  the  tax  should  be  in  proportion  to  the 
population.  A  difficulty  at  once  arose  as  to  the  counting  of 
negroes.  The  South  wished  slaves  counted  when  represen- 
tatives were  apportioned,  while  the  North  protested.  The 
South  objected  to  counting  the  negroes,  whom  they  now  said 
were  property,  when  taxes  were  being  assessed,  while  the 
North  thought  they  should  be  counted.  It  seemed  then 
about  an  even  thing  when  the  convention  adopted  the  rule 


98 


The  American  Federal  State 


Report  of  the 
committee 
on  detail. 

Elliott,  De- 
bates, V, 
376-381. 


Compromise 
over  slave 
trade  and 
navigation. 

Fiske,  262- 
267. 


Method  of 

electing 

Senators. 

Meigs, 
Growth  of 
Const.,  68-80. 


in  use  for  taxes  under  the  Confederation  by  taking  all  of  the 
free  population  and  three-fifths  of  the  negro  slaves  as  the 
basis  in  both  cases,  but  it  does  not  require  a  great  knowledge 
of  our  later  history  to  know  which  side  had  the  best  of  the 
compromise. 

114.  The  Last  Great  Compromise — On  the  26th  of  July 
the  Convention  completed  the  discussion  of  the  Virginia  plan 
and  placed  its  resolutions  in  the  hands  of  a  committee  on 
detail  for  further  elaboration.  Several  days  later  the  com- 
mittee reported  a  plan  very  similar  in  form  and  content  to 
our  present  Constitution  proper.  Among  the  notable  differ- 
ences were  the  failure  to  give  the  courts  jurisdiction  over 
cases  arising  under  the  treaties  and  the  Constitution,  the 
power  granted  the  Senate  to  decide  certain  controversies 
between  States  and  two  powers  of  Congress.  In  this  draft 
Congress  was  not  permitted  to  prohibit  the  slave  trade,  and 
navigation  acts  could  be  passed  only  by  a  two-thirds  vote. 
The  last  two  were  clearly  dictated  by  Southern  interests  and 
met  with  considerable  opposition.  They  were  at  once  given 
to  a  new  committee  and  the  report  favored  prohibition  of  the 
slave  trade  after  1800,  with  a  tax  on  slaves  imported,  and 
struck  out  the  clause  requiring  a  two-thirds  vote  for  naviga- 
tion laws.  This  came  near  precipitating  a  conflict  between 
the  Southern  and  New  England  interests,  which  were  dia- 
metrically opposed  to  each  other  on  the  two  questions. 
They  finally  agreed  to  have  navigation  acts  passed  by  a 
majority  vote,  to  prohibit  the  slave  trade  after  1800  (later 
changed  to  1808),  and  to  Hmit  the  tax  on  slaves  to  ten 
dollars  per  head.  The  power  of  the  Senate  over  contro- 
versies had  already  been  struck  out,  and  the  jurisdiction  of 
the  courts  was  enlarged  soon  after. 

115.  Important  Details.  —  On  a  number  of  subjects  beside 
those  mentioned,  the  convention  was  long  in  doubt.  They 
could  not  at  once  make  up  their  minds  as  to  the  best  method 
of  choosing  Senators.  Some  wanted  election  by  the  people, 
others  election  from  special  districts,  a  third  class  wished  to 
leave  the  choice  with  the  lower  house,  while  a  fourth  favored 


election  of 
the  Pres- 


The  Constitution  99 

the  state  legislatures.     As  the  last  were  the  most  numerous, 
their  views  finally  prevailed. 

Much  more  trouble  was  encountered  with  the  Presidency.  Term  and 
Most  of  the  members  favored  a  single  person  because  the 
committees  of  the  Confederation  had  been  so  unsatisfactory;   idem, 
but  in  regard  to  election,  reeligibility,  and  length  of  term,  the   stanwood 
convention  did  not  know  its  own  mind.     They  first  voted  Hist,  of 
in  favor  of  a  term  of  seven  years  without  reelection,  then  j^"*     '^' 
changed  to  six,  went  back  to  seven,  and  during  the  closing 
weeks  of  the  sessions  decided  upon  four,  with  reeligibility.    united  ' 
The  election  of  the  President  presented  a  much  more  diffi-  states,  vi, 
cult  problem.     They  were  afraid  to  make  him  subordinate  ^     ^^" 
to  Congress  by  leaving  the  choice  to  that  body,  did  not  F'ske,  277- 
dare   intrust  election  to  the  people,  and  were  unwilling 
to  leave  it  to  the  state  legislatures.     After  agreeing  to  two 
of  these   plans   at   different   times,  they   finally   hit   upon 
indirect  election  through  competent  electors  chosen  by  the 
States. 

116.  The  Method  of  Amendment. — The  two  most  impor-  Amoreiib- 
tant  things  with  regard  to  any  constitution  are  how  it  is  made 
and  how  it  may  be  changed.  After  it  has  been  adopted,  the 
method  of  amendment  is  of  the  greatest  consequence,  be-  ^^^^^  '  '' 
cause  that  determines  whether  the  constitution  shall  be 
altered  to  meet  new  political  conditions,  or  whether  it  shall 
be  abolished  by  revolution.  The  failure  of  the  Confedera- 
tion was  in  no  small  measure  due  to  the  requirement  of 
unanimous  consent  to  any  change.  The  opposition  in  the 
convention  to  such  a  rule  was  practically  unanimous,  but  the 
framing  of  a  proper  method  was  not  given  the  attention  it 
deserved.  Debate  was  confined  principally  to  the  question 
whether  the  states  should  have  any  initiative  in  making 
alterations.  It  was  finally  agreed  that  amendments  might 
be  proposed  by  two-thirds  of  each  house  of  Congress  or  by 
a  convention  called  on  the  application  of  two- thirds  of  the 
states,  and  that  for  ratification  the  consent  of  three-fourttts 
of  the  state  legislatures  or  conventions  was  necessary.  Only 
one  permanent  clause  was  to  be  free  from  alteration  by  this 


eral  rule 
adopted. 


272-277. 


ICXD 


The  American  Federal  State 


Lack  of  care 
in  subjects 
not  in  dis- 
pute. 


Objections  to 
the  Constitu- 
tion. 

Hinsdale, 
§J  206-208. 

Story,  Com- 
mentaries, 
kk  293-305. 


Conditions 
favorable  to 
ratification. 

Curtis. 
Comt'l  Hist., 
623-640. 


means :  no  state  should  be  deprived  of  its  equal  represen- 
tation in  the  Senate  without  its  consent. 

The  comparative  lack  of  consideration  with  which  this 
subject  was  treated  was  paralleled  in  the  case  of  several  others, 
which  in  themselves  deserved  the  most  careful  attention.  A 
careful  reading  of  the  proceedings  of  the  convention  cannot 
fail  to  leave  the  impression  that  too  much  attention  was 
given  to  making  a  constitution  that  would  be  adopted,  and 
not  enough  to  perfecting  those  parts  upon  which  opinions 
differed  very  little.  Yet  when  we  consider  the  seriousness 
of  the  situation  in  its  many  trying  aspects,  the  lack  of  experi- 
ence in  framing  national  constitutions,  we  are  just  as  much 
impressed  with  the  moral  earnestness,  the  lofty  patriotism, 
and  the  rare  political  skill  with  which  "the  Fathers  "  sought 
to  give  us  the  best  government  they  were  able  to  devise. 

117.  Conditions  affecting  Ratification.  —  The  Constitution 
was  to  go  into  effect  as  soon  as  nine  states  had  ratified 
through  conventions  of  the  people,  but  there  were  great 
difficulties  to  be  overcome  before  the  states  would  agree  to 
the  new  plan.  Bad  as  the  government  under  the  Confed- 
eration had  been,  popular  prejudice  was  probably  greater 
toward  a  strong  than  toward  an  inefficient  government.  The 
new  instrument  seemed  to  invade  the  sphere  of  the  states, 
to  reestablish  tyranny.  It  provided  for  no  bill  of  the  rights 
of  the  people,  it  made  Congress  absolute  in  the  control  of 
certain  affairs,  it  left  the  Supreme  Court  and  not  the  states 
to  decide  whether  Congress  had  overstepped  its  bounds. 
It  created  a  military  dictator  with  almost  unlimited  power. 

On  the  other  hand,  many  things  were  favorable  to  the  Con- 
stitution. The  best  classes  of  the  citizens  were  disgusted 
with  the  Confederation,  and  these  classes  included  most  of 
the  poUtical  leaders.  The  Federalists  or  friends  of  the 
Constitution  were  much  better  organized  than  their  oppo- 
nents. They  possessed  greater  knowledge  and  skill,  and 
were  able  to  show  the  people  that  their  fears  were  based  on 
prejudice.  This  is  nowhere  better  exemplified  than  in  the 
able  papers  written  by  Hamilton,  Madison,  and  Jay,  pub- 


The  Constitution  lOi 

lished  under  the  title  of  The  Federalist.  Nevertheless  it  is 
true  that  the  Constitution  was  drawn  "  by  grinding  necessity 
from  a  reluctant  people." 

1 1 8.  The  First  States.  —  It  was  the  small  states  that  led  Five  states 

the  way  in  ratification.     Delaware  came  first  on  the  6th  of   ^""ng  De- 
,  .  ,  .  T-i  t        •  cember  and 

December,  1787,  with  a  unanimous  vote.     Pennsylvania  won  January. 

after  a  hard  struggle  in  which  the  superior  organization  of 

the  Federalists  and  the  logic  of  Wilson  were  the  determining  317. 

factors.     New  Jersey,  Georgia,  and  Connecticut  fell  into  line 

without  much  opposition ;  but  in  North  Carolina,  and  later 

in  New  Hampshire,  the  conventions  adjourned  without  action. 

As  Massachusetts  was  the  stronghold  of  particularism,  the   Massachu- 

Anti-federalists  made  a  serious  attempt  to  keep  the  state 

from  ratifying.     The  three  great  objections  brought  forward  Walker, 

,  .       ,.,        •  <-    ,  ,  ,  ,    .    .   ,        Nation,  SS- 

were  that  the  hberties  of  the  people  were  threatened  (i)  by  57, 
the  length  of  the  terms  of  representatives  especially,  (2)  by  p.  , 
the  absence  of  a  bill  of  rights,  and  (3)  by  the  general  con-   331. 
solidation  of  power  in  the  United  States  government.     The 
convention  would  not  vote  for  ratification  until  it  was  under- 
stood that  a  bill  of  rights  should  be  added,  and  then  the 
majority  was  only  nineteen  out  of  a  total  of  over  three  hun- 
dred.    Following  this  Federalist  victory,  came  the  approval  The  ninth 
of  Marj'land,  South  Carolina,  and  New  Hampshire,  so  that  ^*^*^' 
the  nine  states  legally  necessary  had  been  secured. 

119.  The  Later  States.  —  It    cannot    be    said    that    the  Virginia, 
troubles  of  the  Federalists  were  over  yet,  for  Virginia  was   Fiske,  334- 
the  most  populous  state,  and  New  York,  though  small,  was  338. 
commercially  important.     The  Anti-federalists  in  the  former 

were  led  by  ardent  Patrick  Henry,  who  made  every  effort 
to  form  a  Southern  confederacy.  His  attacks  in  the  con- 
vention were  directed  largely  toward  the  absolutism  of  the 
President  and  the  absence  of  a  bill  of  rights.  As  he  proved 
no  match  for  Madison  aided  by  John  Marshall,  the  state,  by 
a  vote  of  eighty-nine  to  seventy-nine,  decided  to  cast  in  its 
lot  with  the  new  Union. 

In  New  York  the  opposition  was  ably  organized  by  Gov-   New  York, 
ernor  Clinton  and  still  more  ably  conducted  by  Malancthon 


102 


The  American  Federal  State 


Fiske,  340- 
344- 

Lodge,  Ham- 
ilton, 70-80. 


The  non- 

ratiiying 

states. 

Johnston,  in 

Lalor,III, 

788. 


Adoption  of 
the  amend- 
ments. 

Schouler, 

United 

States, 

(ist    ed.),    I, 

102-104. 


The  Consti- 
tution recog- 
nized the 
existence  of 
a  state 
"  partly  fed- 
eral and 
partly 
national." 

Federalist, 
No.  39. 


Smith.  But  for  the  genius  of  Hamilton,  the  Anti-federalist 
majority  could  not  have  been  overcome;  yet  the  fact  that 
he  made  a  convert  of  his  chief  adversary  is  sufficient  proof 
of  the  ability  with  which  he  defended  the  principles  of 
the  Constitution.  Even  then  the  state  was  carried  by  the 
narrow  margin  of  two  votes. 

North  Carolina  and  Rhode  Island  were  still  outside  the 
Union  and  saw  fit  to  remain  so,  the  former  until  late  in 
1789,  the  latter  until  May,  1790.  As  the  Congress  of  the 
Confederation  practically  expired  in  October,  1788,  and  as 
the  new  central  government  went  into  operation  in  the 
spring  of  1789,  it  has  always  been  an  interesting  question 
as  to  the  status  of  these  two  states  which  sought  to  refrain 
from  any  part  in  the  great  political  Revolution  of  1787. 

120.  The  First  Ten  Amendments.  —  Massachusetts  was 
not  the  only  state  that  feared  to  adopt  the  Constitution 
without  a  bill  of  rights  to  protect  individuals  from  the  new 
central  government.  So  strong  was  the  feeling  in  favor  of 
adding  some  constitutional  guarantees  that  the  citizens 
should  not  be  arbitrarily  treated  that  ratification  in  several 
of  the  conventions  had  only  been  secured  by  promising  that 
the  first  Congress  should  submit  a  bill  of  rights  to  the  dif- 
ferent states.  This  was  accordingly  done,  and  ten  of  these 
amendments  were  adopted  by  three-fourths  of  the  states  and 
declared  to  be  a  part  of  the  Constitution  December  15, 
1791. 

121.  The  Federal  State.  —  The  constitutional  convention 
clearly  recognized  the  fact  that  the  United  States  was  not 
really  a  league  as  the  Articles  of  Confederation  declared, 
but  was  much  more  united.  They  also  saw  that  to  create  a 
centralized  national  government  would  be  impossible,  and 
so  adopted  the  compromise  system  which  moderate  men 
spoke  of  as  "partly  national  and  partly  federal  [confed- 
erated]." They  did  not  realize  that  the  kind  of  a  state 
which  really  existed  was  a  Federal  State,  but  they  neverthe- 
less distributed  the  powers  of  government  between  the  cen- 
tral and  the  state  governments  in  such  a  way  that  each  was 


The  Cofistitution  103 

given  those  duties  it  could  best  perform.  In  other  words, 
while  the  idea  of  a  Federal  State  was  not  clear  to  them,  the 
method  of  government  necessary  for  such  a  state  was  fairly 
well  appreciated. 

122.  The  Central  Government  and  the  Constitution  in  1787  The  value  of 
and  since.  —  Fortunately  the  boundary  which  separated  the  *  ^rant  of 
state  sphere  from  the  national  sphere  was  so  placed  that  all  powers, 
subjects  properly  belonging  to  the  central  government  under 
conditions  at  all  Hke  those  of  1787  were  granted  to  it,  while 
everything  else  was  left  to  the  states.    That  the  national 

sphere  was  not  hmited  as  much  as  the  people  would  have 
wished,  was  due  to  the  reaction  against  the  weakness  of  the 
Confederate  Congress  and  the  breadth  of  view  of  the  leaders 
in  the  Convention.  That  the  powers  delegated  to  the 
national  government  now  are  nominally  the  same  as  those 
delegated  one  hundred  years  ago,  is  due  still  more  to  the 
fact  that  those  powers  were  granted  in  general  and  liberal 
terms,  and  that  the  interpretation  of  the  Constitution  by  the 
different  departments  of  government,  especially  the  Supreme 
Court,  has  given  these  powers  a  broader  scope  than  was  first 
intended.  Were  it  not  for  this,  our  unwritten  Constitution 
could  not  have  supplemented  the  written  Constitution  so  as 
to  give  the  central  government  the  power  it  has  come  to 
need  as  the  national  feeling  of  the  people  has  grown  stronger, 
and  the  written  Constitution  must  have  long  ago  been  sup- 
planted by  a  new  instrument  better  suited  to  the  conditions. 

123.  A  Government  of  Checks  and  Balances.  —  The  eigh-  iTjc  political 
teenth-century  ideal  of  good  government  was  one  of  checks  p^*'     „ 
and  balances.     This  was  undoubtedly  due  to  the  belief  of 

the  people  that  individual  liberty  should  be  the  prime  object 
of  government.  Most  governments  had  been  so  oppressive 
that  all  governments  except  those  under  the  immediate 
supervision  of  the  people,  as,  e.g.  in  the  town  meetings,  were 
looked  upon  with  distrust,  almost  as  a  necessary  evil.  In 
order  therefore  to  keep  the  government  from  harming  the 
individual,  an  attempt  was  made  to  separate  the  legislative, 
executive,  and  judicial  departments  with  the  intention  of 


I04 


The  American  Federal  State 


balancing  them  against  each  other,  and  making  them  serve 
as  checks  upon  one  another.  It  was  customary,  however, 
to  give  the  executive  some  legislative  power,  as  the  veto,  in 
order  to  act  as  a  further  check  upon  the  legislature,  while 
the  legislature  could  interfere  in  the  execution  of  the  laws  in 
various  ways.  The  central  government  created  by  the  Con- 
stitution of  1 787  was  the  nearest  approach  to  this  eighteenth- 
century  ideal  that  ever  existed.  John  Adams  has  enumerated 
in  a  famous  letter  (1814)  the  principal  checks  and  balances 
at  the  time  the  new  government  was  inaugurated. 


John 
Adams's 
enumeration 
of  balances. 

Adams, 
Works,  VI, 
466-468. 


"Is  there  a  constitution  on  record  more  complicated  with  balances 
than  ours  ?  In  the  first  place,  eighteen  states  and  some  territories  are 
balanced  against  the  national  government.  ...  In  the  second  place, 
the  House  of  Representatives  is  balanced  against  the  Senate  and  the 
Senate  against  the  House,  In  the  third  place,  the  executive  authority 
is  in  some  degree  balanced  against  the  legislature.  In  the  fourth 
place,  the  judiciary  power  is  balanced  against  the  House,  the  Senate, 
the  executive  power  and  the  state  governments.  In  the  fifth  place, 
the  Senate  is  balanced  against  the  president  in  all  appointments  to 
office  and  in  all  treaties.  This,  in  my  opinion,  is  not  merely  a  useless 
but  a  very  pernicious  balance.  In  the  sixth  place,  the  people  hold  in 
their  own  hands  the  balance  against  their  own  representatives  by 
biennial  which  I  wish  had  been  annual  elections.  In  the  seventh 
place,  the  legislatures  of  the  several  states  are  balanced  against  the 
Senate  by  sextennial  elections.  In  the  eighth  place,  the  electors  are 
balanced  against  the  people  in  the  choice  of  the  president.  And  here 
is  a  complication  and  refinement  of  balances  which  for  anything  I 
recollect  is  an  invention  of  our  own  and  peculiar  to  us," 


The  two 
views. 

Story,  Com- 
mentaries, 

kh  306-372, 


124.  Theories  concerning  the  Constitution. — If  the  poHti- 
cal  leaders  of  the  last  century  did  not  fully  apprehend  the 
idea  of  a  Federal  State,  we  certainly  could  not  expect  the 
people  to  do  so.  As  a  consequence,  the  new  Constitution 
had  barely  been  completed  before  one  set  of  persons 
wished  to  consider  it  as  a  compact  between  the  states  who 
still  retained  their  sovereignty  and  who  had  united  to  form  a 
central  government  but  not  a  central  State.  A  second  set 
believed  that  the  United  States  was  more  than  a  league,  and 
that  it  was  the  people  of  the  United  States  who  were  sover- 


The  Constitution  105 

eign.  These  two  views  furnish  the  clew  to  the  interpretation 
of  our  early  history,  the  advocates  of  each  view  struggling 
for  supremacy. 

125.  Compact  Theory.  —  While  the  views  were  not  dis-   Hold  of  the 
tinctly  formulated  at  first,  there  is  little  doubt  that  during  compact 
the  early  years  of  the  Constitution  most  of  the  people  would  people, 
have  been  adherents  of  the  compact  theory.     To  them  the   ^o^  ^ 
states  were  much  more  real  that  the  United  States,  and  if    Webster, 
they  had  been  obliged  to  locate  sovereignty  in  one  or  the   ^74-i8i. 
other,  with  little  hesitation  it  v^^ould  have  been  given  to 

the  states.  This  view  was  strengthened  by  the  claim  of  the 
states  to  sovereignty  under  the  Confederation,  by  the  strong 
spirit  of  particularism  existing  everywhere,  by  the  fact  that 
no  state  was  bound  to  the  new  system  till  it  gave  its  own 
consent,  that  the  United  States  was  apparently  a  creation  of 
the  states,  that  in  ratification  some  of  the  states  had  claimed 
the  right  to  withdraw  their  consent  if  they  felt  the  central 
government  exceeded  its  powers,  and  finally  that  there  was 
little  opposition  to  the  tenth  amendment  which  many  con- 
strued as  a  recognition  of  state  sovereignty. 

126.  National  Theory. — The  national  theory  did  not  find   Basis  of  the 

as   wide   popular  acceptance   at   the    first,   though   it   was  ^^^^''y- 

the  view  of  the  Constitution  taken  by  many  of  the  leaders   Story,  Com- 

from   the   beginning.      As    the   spirit   of  nationality   grew  T/^lail 

stronger,  it  gained  adherents  everywhere,  especially  among 
,  ,  ,111  T         1  Johnston,  in 

the  party  that  controlled  the  central  government.     Its  advo-   Laior,  iii, 

cates  claimed  that  the  Union  existed  as  early  as  any  of  the  788-797- 

states,  that  the  states  never  had  exercised  all  the  powers  of 

sovereignty  even  under  the  Confederation,  that  ratification 

by  states  did  not  prove  state    sovereignty,  for   ratification 

was  not  entirely  voluntary,  and  in  the  case  of  Rhode  Island 

and  North  Carolina,  not  at  all  so ;   and  that  a  change  in  the 

Constitution,  completely  altering  the  sphere  of  the  states, 

might  take  place  without  any  one  so-called  sovereign  state. 

127.  The  Preamble. — The  basis  and   purposes   of   the  Comparison 
new  Constitution  were  set  forth  in  the  preamble.    We  notice   Y'"?  I''* 
immediately  the   great  difference   between  this   paragraph 


io6 


The  American  Federal  State 


Organization 
and  powers 
of  the  Senate, 

Schouler, 
Constitu- 
tional 
Studies, 
104-113. 


Organization 
and  powers 
of  the  House. 


and  the  statements  of  the  Articles  of  Confederation  cover- 
ing the  same  subjects.  It  was  no  longer  a  "firm  league 
of  friendship,"  but  a  union  with  a  constitution  ordained  by 
the  "  people  of  the  United  States,"  that  phrase  which  was 
to  be  the  bone  of  contention  for  nearly  a  century  of  bitter 
controversy.  The  objects  stated  are  more  positive  in 
character  as  well  as  more  numerous  than  those  of  the 
Articles,  so  that  the  different  spirit  which  the  document 
breathes  is  apparent  from  the  very  beginning. 

128.  The  Congress:  the  Senate. — The  legislative  depart- 
ment under  the  new  system  was  to  consist  of  two  houses 
essentially  different  in  composition  but  practically  alike  in 
powers.  The  upper  house  or  Senate  was  usually  spoken  of 
as  federal,  for  in  it  each  state  had  two  members,  and  no  state 
was  to  be  deprived  of  representation  without  its  own  con- 
sent. But  as  each  member  had  a  vote,  was  not  bound  by 
instructions  of  the  state  legislature  and  could  not  be  recalled, 
the  senator  was  a  very  different  person  from  the  state  dele- 
gate to  the  Confederate  Congress.  Senators  had  to  be  at 
least  thirty  years  of  age,  an  inhabitant  of  the  state  which 
they  represented,  and  nine  years  a  citizen  of  the  United 
States.  They  were  to  be  chosen  by  the  state  legislature  for 
a  term  of  six  years,  one-third  retiring  every  second  year. 
Like  all  others  connected  with  the  United  States  government, 
they  were  compensated  from  the  national  treasury.  As  the 
Senate  was  a  small  body,  it  was  believed  to  be  more  digni- 
fied than  the  House,  and  especially  suited  to  transact  the 
special  business  left  to  it.  It  could  give  or  withhold  its 
consent  to  the  more  important  appointments  made  by  the 
President,  could  ratify  treaties  by  a  two-thirds  vote,  sat  as  a 
court  for  the  trial  of  impeachment  cases,  but  could  convict 
only  when  two-thirds  favored  such  action ;  and,  in  case  the 
Vice-president  was  not  elected  by  the  "college,"  it  was  to 
choose  one  from  the  two  highest. 

129.  House  of  Representatives. — The  House  was  consti- 
tuted on  what  was  then  called  the  national  principle,  i.e. 
the  number  of  members  was  in  proportion  to  population. 


The  Constitution 


107 


but  each  state  had  at  least  one  member.  In  order  to  learn 
the  exact  population  a  census  was  to  be  taken  every  ten 
years,  and  the  members  to  be  apportioned  according  to  the 
number  of  free  inhabitants  and  three-fifths  of  all  others. 
Persons  could  not  be  chosen  representatives  unless  they 
were  twenty-five  years  of  age,  had  been  citizens  of  the 
United  States  seven  years,  and  were  at  that  time  inhabitants 
of  the  state.  In  the  election  of  representatives  there  was  no 
attempt  to  make  the  franchise  national ;  but  those  who  voted 
for  members  of  the  lower  house  of  the  legislature  in  the  dif- 
ferent states  might  also  vote  for  members  of  Congress.  As 
the  House  was  the  more  popular  branch  of  Congress,  it  was 
given  sole  power  to  originate  money  bills ;  and  when  the 
electors  failed  to  choose  a  president,  the  members  voting  by 
states  were  to  select  one  from  the  five  (afterward  three) 
highest  on  the  list.  Following  the  custom  in  England  and 
America,  the  House  had  exclusive  power  of  impeachment. 
130.  Powers  of  Congress.  —  Unlike  the  powers  exercised 
by  the  state  legislatures,  those  of  Congress  were  enumerated, 
though  in  general  terms.  Several  points  are  worthy  of 
attention.  First  of  all,  the  new  government  was  to  be  prac- 
tically independent,  as  Congress  had  full  power  to  borrow 
money  and  to  levy  duties  and  other  taxes,  with  the  one  limi- 
tation that  all  direct  taxes  should  be  in  proportion  to  popu- 
lation. In  the  exercise  of  its  other  powers  as  well,  Congress 
legislated  not  for  the  states,  but  for  individuals  with  whom 
the  central  government  came  into  direct  contact.  It  had 
power  over  interstate  commerce,  over  uniform  laws  of  natu- 
ralization, over  post-offices,  patents,  and  copyright.  In  mili- 
tary matters  it  could  not  only  declare  war,  but  could  raise 
an  army  and  create  a  navy  of  its  own,  and  control  the  militia 
in  case  of  need.  Over  foreign  affairs  it  had  exclusive  power, 
as  the  states  were  forbidden  to  send  or  receive  ambassadors 
or  make  treaties  and  alliances.  All  territory  belonging  to 
the  United  States  was  subject  to  the  control  of  Congress, 
and  it  alone  could  admit  new  states.  Most  important  of 
all,  it  was  vested  with  power  "  to  make  all  laws  necessary 


General. 

Schouler, 
Constitu- 
tional 

Studies,  115- 
147. 

Financial. 


Commercial. 
Military. 


Foreign 
affairs. 

Territorial. 


The  "  elastic 
clause." 


io8 


The  American  Federal  State 


Separation  of 
the  depart- 
ments. 

Hinsdale, 
§{  24s,  246. 


President's 
powers. 

Schouler, 
Constitu- 
tional 

Studies,  156- 
168. 


Election. 


Organization 
and  jurisdic- 
tion. 


and  proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the  gov- 
ernment of  the  United  States,  in  any  department  or  officer 
thereof."  This  has  frequently  been  called  the  "  elastic 
clause." 

131.  The  Executive. — The  effort  was  made  to  keep  the 
departments  separate  by  making  them  in  no  ways  respon- 
sible to  each  other.  Congress  had  nothing  to  do  with  the 
choice  of  the  President,  and  it  could  not  control  his  action 
except  through  impeachment.  The  judges  were  appointed 
by  the  executive,  with  the  consent  of  the  Senate;  but  they 
also  were  removable  only  by  impeachment. 

In  the  President  was  vested  the  whole  executive  power. 
This  included  power  to  execute  the  laws,  to  command  the 
army  and  navy,  to  appoint  all  important  officials,  to  grant 
pardons  and  make  treaties,  with  the  concurrence  of  two- 
thirds  of  the  Senate,  and  to  attend  to  all  administrative  mat- 
ters. He  was  to  represent  the  whole  United  States,  and  not 
districts  or  states,  like  members  of  Congress.  He  was  to 
be  chosen  by  electors,  who  were  selected  by  the  states  and 
were  as  numerous  as  the  senators  and  representatives  from 
each  state.  These  electors  were  to  be  the  most  prominent 
men  of  the  state,  and  were  to  use  their  own  judgment  in  the 
selection  of  President  and  Vice-president.  No  one,  however, 
was  eligible  to  the  office  of  President  or  Vice-president 
unless  he  was  a  native  born  citizen  or  a  naturalized  citizen 
in  1788,  at  least  thirty-five  years  of  age,  and  fourteen  years 
a  resident  of  the  United  States.  In  the  performance  of  his 
duties,  the  President  was  to  be  aided  by  officials  merely 
mentioned  in  the  Constitution  as  heads  of  departments ; 
but  these  men  were  nothing  more  than  the  servants  of  the 
President. 

132.  The  Judiciary.  —  The  national  judiciary  was  estab- 
lished for  the  trial  of  those  cases,  not  numerous  but  impor- 
tant, that  could  not  from  their  very  nature  be  properly 
decided  by  state  tribunals.  According  to  the  Constitution, 
there  was  to  be  a  Supreme  Court  and  such  inferior  courts 


The  Constitution  1 09 

as  Congress  should  establish.     All  judges  were  to  be  ap-  Schouier, 
pointed  for  good  behavior  by  the  President,  with  the  consent   ^°**^*'*^- 
of  the  Senate.     The  courts  were  to  have  jurisdiction  in  all  studies,  169. 
cases  arising  under  the  Constitution,  the  treaties,  or  national  '^^^• 
laws,  in  cases  affecting  our  representatives  abroad,  or  dealing 
with  admiralty  and  maritime  jurisdiction.     All  cases  where 
a  state  was  a  party,  or  between  citizens  of  different  states,  or 
between  a  foreigner  and  a  citizen,  were  to  be  tried  in  these 
courts. 

133.  The  Nation  and  the  States.  —  In  the  system  recog-  Relation  of 
nized  by  the  Constitution  the  nation  and  the  states  were  ^^^  *^'°* 
very  closely  related.    The  two  together  formed  a  whole —  Compare 
each  by  itself  an  incomplete  part.     While  they  had  concur-   is  225-231 
rent  powers  over  certain  subjects,  as  a  rule  the  powers  were 

Bryce,  233- 

mutually  exclusive.  The  separation  of  the  state  and  national  242. 
spheres  was  accomplished  by  delegating  certain  powers  to  the 
United  States  government,  and  prohibiting  some  of  those  and 
some  others  to  the  states.  Within  its  own  sphere  each  was 
supreme ;  but  in  case  they  overlapped  and  the  two  came  into 
conflict,  precedence  was  given  to  the  United  States  by  virtue 
of  the  provision  that  the  Constitution,  the  national  laws 
made  in  agreement  with  the  same,  and  the  treaties  should 
be  the  supreme  law  of  the  land.  The  dependence  of  the 
nation  on  the  states  is  shown  not  only  in  the  need  of  state 
law  to  supplement  national  law,  but  in  the  method  of  elec- 
tion of  many  of  its  officials.  By  refusal  to  enact  certain 
necessary  laws  the  states  might  interfere  with,  or  even  pre- 
vent the  election  of  senators,  representatives,  and  presiden- 
tial electors.  Since  almost  no  instances  of  such  actions 
have  occurred,  it  is  quite  apparent  that  the  states  believed 
they  would  be  the  ones  injured  by  an  attempt  of  that  kind. 

134.  Prohibitions  on  the  States.  —  Among  the  things  pro- 
hibited to  the  states  were  the  making  of  treaties  and  alli- 
ances with  other  states  and  foreign  powers.    The  states  Schouier. 
were  not  allowed  to  coin  money,  make-  paper  money,  or   C^"^*^^- 
allow  paper  to  be  used  as  legal  tender,  or  pass  any  law  studies, 
impairing  the  obligation  of  contracts.    The  war  powers  were   148-155- 


no 


The  American  Federal  State 


In  the  Consti- 
tution and 
amendments. 

Schouler, 
ibid.,  148- 
150,  190-197. 


Different 
views. 

Hinsdale, 
hk  241-247. 


expressly  limited  to  repelling  invasions ;  and  they  could  levy 
duties  only  with  the  consent  of  Congress  and  for  the  national 
treasury.  As  with  the  United  States,  the  granting  of  titles  and 
passing  bills  of  attainder  and  ex  post  facto  laws  were  prohibited. 

135.  Prohibitions  and  Limitations  on  the  United  States 
Government.  —  Beside  the  prohibitions  placed  upon  the 
national  government  by  the  Constitution  proper  are  those 
dealing  especially  with  the  rights  of  individuals  in  the  first 
nine  amendments.  The  principal  constitutional  prohibitions 
deal  with  duties  on  exports  from  the  states,  ex  post  facto 
laws,  bills  of  attainder,  and  titles  of  nobility ;  the  principal 
limitations  with  the  writ  of  habeas  corpus,  which  shall  not 
be  suspended  except  in  case  of  war,  with  direct  taxes,  with 
commerce,  and  drawing  money  from  the  treasury.  In  the 
"  bill  of  rights  "  the  citizen  is  guaranteed  immunity  from 
interference  by  the  central  government  regarding  religion, 
freedom  of  speech  and  the  press,  the  keeping  of  arms,  and 
quartering  of  soldiers.  In  criminal  cases  full  provision  is 
made  for  the  fullest  rights  of  the  accused ;  and  the  ninth 
amendment  declares  that  "  the  enumeration  in  the  Consti- 
tution of  certain  rights  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people." 

136.  Sources.  —  Historical  writers  have  found  some  diffi- 
culty in  agreeing  upon  the  sources  from  which  the  Con- 
stitution was  really  derived.  Years  ago  there  was  quite  a 
widespread  feeling  that  a  great  part  of  the  Constitution  was 
invented  by  the  Convention  of  1787;  but  although  some 
features  are  now  spoken  of  as  "original,"  practically  all 
believe  the  Constitution  is  the  product  of  the  historical 
experience  of  the  race,  and  that  the  great  merit  of  the 
Convention  was  that  it  did  not  try  to  create  anything,  but 
adapted  institutions  already  in  existence  to  suit  the  condi- 
tions. Yet  in  determining  what  institutions  were  most  used, 
writers  have  differed  widely  —  one  school  emphasizing  the 
dependence  on  English  institutions,  the  other  calling  atten- 
tion to  the  extent  to  which  preexisting  American  institutions 
and  ideas  were  used. 


The  Constitution  III 

137.  English  Sources.  —  According  to  the  most  radical  The  Consti- 

English  view,  voiced  by  Sir  Henry  Maine,  our  Constitution  '"^'°" '" 
°  '  ^  •'  some  ways 

is  "  in  reality  a  version  of  the  British  Constitution."     The  a  copy, 
more  moderate  view  is  expressed  by  Dr.  Stevens  when  he  cu^tis  in 
says  it  is  "not  a  mere  imitation,"  but  an  "historical  devel-  Winsor,  vil, 
opment  from  English  forms."     Taylor  expresses  much  the  ^7'^^- 
same  idea  in  the  statement  that  "  every  American  state  is  a 
mere  reproduction  of  the  central  organization  of  the  English 
Kingdom,  with  such  modifications  as  have  necessarily  resulted 
from  the  abolition  of  nobility,  feudality,  and  Kingship."     In 
speaking  of  the  model  of  the  President,  Bryce  says  the  Con- 
vention "  made  an  enlarged  copy  of  the  state  governor,  or,  to 
put  the  same  thing  differently,  a  reduced  and  improved  copy 
of  the  English  King."     So,  that  even  with  those  who  believe 
most  strongly  in  the  influence  of  English  sources,  the  idea  of 
development  through  colonial  sources  rather  than  conscious 
imitation  is  uppermost. 

138.  American    Sources. — Other  writers  deny  that  we  A  purely 
were   so   dependent  on    England,    directly    or    indirectly,   ■^'"^"^an 
They  not  only  call  attention  to  the  multitude  of  instances 

where  the  Convention  made  use  of  institutions  existing  in     ^^'^^'  ^"^  ^^' 
the  states  before  1787,  but  urge  that  many  of  the  ideas  of    Johnston,  m 

.  Nrw  Prince- 

owe  federal  system  are  purely  American.     For  example,  the  ton  Revirw, 

principle  of  federalism  is  in  nowise  EngHsh,  neither  is  the  ^^  (1887), 
idea  of  a  written  constitution.  They  say  that  England  never 
furnished  anything  like  the  electoral  college  or  even  our 
Supreme  Court,  and  that  our  institutions  were  developed  as 
much  from  the  common  stock  of  political  ideas  as  from 
those  brought  over  from  England. 

The  truth  in  each  of  these  arguments  must  be  apparent.  The  truth  in 
It  is  of  course  impossible  to  say  how  far  the  colonial  ^^'^  '  ^°'^" 
institutions  are  English,  but  we  do  know  that  there  is 
scarcely  a  feature  of  either  the  Constitution  or  the  national 
government  that  cannot  be  traced  to  earlier  American  insti- 
tutions, while  direct  conscious  imitation  of  the  English 
system  of  1787  played  a  very  small  part  in  the  work  of  the 
Convention. 


112  The  American  Federal  State 

QUESTIONS  AND   REFERENCES 
The  Work  of  the  Convention  (§§  106-116) 

1.  What  was  the  most  distinctive  feature  of  the  Virginia  plan? 
Compare  the  essential  parts  of  the  Virginia  plan,  the  New  Jersey  plan, 
and  that  of  Hamilton.  What  sections,  if  any,  of  the  last  two  were 
made  parts  of  the  Constitution? 

2.  What  meaning  was  given  to  the  words  national  and  federal  by 
the  people  of  1787?  Why  did  the  small  states  especially  fear  a 
strong  central  government? 

3.  Did  equality  of  representation  in  the  Senate  prove  that  the 
states  were  sovereign?  that  they  were  equal  in  power?  Was  there 
any  difference  between  a  senator  and  a  delegate  to  former  congresses, 
or  a  member  of  the  German  Butidesraih  to-day  as  to  relation  to  his 
"state"  and  his  rights  in  voting?     Discuss  fully. 

4.  State  clearly  the  conflicting  opinions  that  were  harmonized  by  the 
compromises.  WTiich  side  won  in  each  case?  Were  any  of  the  com- 
promises unnecessary?     Were  any  of  them  harmful  in  our  later  history? 

5.  In  what  ways  are  the  constitutions  of  the  principal  countries 
amended  at  the  present  time?  Was  the  method  of  our  Constitution 
considered  too  flexible  or  too  inflexible  in  1 787  ?  What  is  our  opinion 
about  that  now? 

Ratification  (§§  1 17-120) 

1 .  Which  compromise  did  most  in  getting  votes  for  the  Constitution  ? 
Which  compromise  stood  most  in  the  way  of  ratification? 

2.  Why  was  the  Constitution  ratified  by  conventions  instead  of  state 
legislatures?  Why  was  it  not  ratified  by  popular  vote  in  the  states? 
by  a  majority  popular  vote  of  the  people  of  the  nation  as  a  whole  ? 

3.  As  the  sphere  of  the  states  was  different  from  that  under  the 
Confederation,  did  ratification  through  the  states  imply  that  the  new 
government  was  not  national?  What  plan  of  ratification  was  proposed 
by  the  Virginia  plan  ? 

4.  Study  Henry's  argument  in  the  Virginia  Convention.  Estimate 
the  value  of  each  objection.      Have  any  of  his  prophecies  proved  true? 

5.  What  semi-conditions  were  attached  to  the  ratifications  of  Vir- 
ginia and  New  York  ?  Were  they  legally  grounds  for  withdrawal 
from  the  Union? 

6.  When  did  the  Confederation  cease  to  exist?  why?  What  in 
your  opinion  was  the  position  of  North  Carolina  and  Rhode  Island 
before  they  united  with  the  other  states?  Were  they  sovereign,  or 
did  their  actions  prove  conclusively  that  they  were  not  ?  \Vhy  was 
there  "a  great  political  revolution  of  1787"? 


The  Constitution  113 


General  Character  of  the  Constitution  (§§  121-126) 

a.  On  the  compact  theory  especially  consult  Davis,  Rise  and  Fall 
of  the  Confederate  Government,  I,  Part  II;  Stephens,  War  between 
the  States,  I,  colloquys  III-VI,  VIII,  IX,  XI;  Sage  (Centz),  Republic 
of  Republics,  41-69,  159-270. 

b.  Accounts  more  favorable  to  the  national  theory  may  be  found  in 
Johnston  on  State  Sovereignty,  in  Lalor,  III,  788-800;  Hare,  American 
Constitutional  Law,  I,  Lectures  IV-VII;  Hurd,  Theory  of  National 
Existence,  chap.  IV. 

1.  Select  the  "  national "  and  the  "  federal "  features  of  the  Consti- 
tution. Do  you  think  that  the  United  States  of  1788  was  a  Federal 
State?    Apply  explanation  (§  12). 

2.  Illustrate  by  example  from  later  history  how  interpretation  by 
the  different  departments  has  given  the  powers  of  the  national  govern- 
ment broader  scope  than  was  first  intended. 

3.  What  is  the  real  value  of  "checks  and  balances"?  To  what 
extent  are  they  necessary?     What  are  their  disadvantages? 

4.  Define  the  words  sovereign  and  compact.  Is  the  idea  of  volun- 
tary agreement  necessary  to  the  latter?  Was  the  union  of  the  states 
voluntary  in  1787? 

5.  Name  all  the  parts  of  the  Constitution  that  tend  to  confirm  the 
compact  theory ;  all  that  seem  to  indorse  the  national  theory. 


The  Constitution  in  Outline  (§§  127-138) 

a.  On  English  sources  see  Bryce  (abd.  ed.),  chaps.  II-IV;  Taylor, 
English  Constitution,  Introduction;  and  Stevens,  Sources  of  the  Con- 
stitution. On  American  sources  consult  Morey,  Sources  of  American 
Federalism,  A.  A.  A.,  VI,  197-226;  Fisher,  Evolution  of  the  Constitu- 
tion, 105-309;   Robinson,  Original  Features,  in  A.  A.  A.,  I,  203-243. 

1.  Study  the  Constitution  and  the  first  amendments  carefully. 

2.  Make  a  table  comparing  on  all  important  points  the  Articles  of 
Confederation  and  the  Constitution.  Consider  at  the  least :  objects, 
form  of  government,  powers  of  central  and  state  governments,  relations 
to  states  and  individuals  and  method  of  amendment.  Learn  the 
preamble.     What  was  meant  by  the  "people  of  the  United  States"? 

3.  What  are  the  advantages  of  a  two  over  a  one  chambered  legis- 
lature? what  of  the  different  methods  of  representation  in  Senate  and 
House  ? 

4.  Why  is  the  power  of  Congress  "  to  make  all  laws  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,"  etc.,  spoken 
of  as  the  "  elastic  clause  "? 


114  T^^^^  American  Federal  State 

5.  What  difference  would  it  have  made  with  our  history  if  the 
power  of  the  national  courts  had  been  restricted  to  the  laws  enacted 
by  Congress? 

6.  What  is  the  difference  between  delegated  and  reserved  powers? 
between  inherent  and  implied  powers  ?  If  a  power  is  "  delegated," 
may  any  inference  be  drawn  as  to  a  power  similar  in  character  but  not 
mentioned  ? 

7.  Qassify  all  provisions  of  the  Constitution  or  first  ten  amend- 
ments that  deal  with  liberty  as  civil,  religious,  or  political. 

8.  Select  some  one  department  and  try  to  trace  the  origin  of  its 
different  features  and  powers. 


CHAPTER   VI 

NATIONALITY  AND  COLONIALISM  (1789-1815) 
General  References 

Mace,  Method  in  History,  145-184.     The  meaning  of  events. 

Johnston,  American  Politics,  chaps.  II-VIII. 

Channing,  Student's  History,  279-368. 

Hart,  Formation  of  the  Union,  141-222. 

Walker,  Makiii^  of  the  Nation,  73-273. 

Von  Hoist,  Constitutional  History,  I,  64-272. 

Curtis,  Constitutional  History,  II,  1-230. 

Lamed,  under  United  States. 

Schouler,  United  States,  I-II. 

McMaster,  People  of  the  United  States,  II-III. 

Hildreth,  United  States,  IV-VI. 

Adams,  United  States.  8  volumes.  The  highest  authority  on  the  sub- 
jects covered. 

Patten,  Political  Parties. 

Johnston,  in  Lalor  on  Federalists,  Democratic-Republicans,  Embargo, 
Bank  Controversies,  Hartford  Convention,  etc. 

Taussig,  Tariff  History. 

Winsor,  America,  VII. 

Macdonald,  5^/;rf  Documents  (1776-1861),  46-207.    Texts  and  notes. 

Lodge's  Washington  (A.  S.),  2  volumes ;  Marshall's  Washington, 
5  volumes;  Morse's  John  Adams  (A.  S.)  ;  Lodge's  Hamilton 
(A.  S.);  ?>\xvcmtx'%  Hamilton ;  Morst's /efferson  (^A.  S.) ;  Schou- 
ler's  /efferson  ;  Gay's  Madison  (A.  S.) ;  Steven's  Gallatin  (A.  S.) ; 
Pellew's  fay  (A.  S.);  Adams's  Randolph  (A.  S.). 

139.  Character  of  Nationality.  —  There  can  be  little  doubt  Nationality 
that,  from  the  standpoint  of  our  Federal  State,  the  most  "»eansmore 

*^  than  a  strong 

important   political   fact  of  the  century  after  we  became   central  gov- 

independent  is  the  development  of  nationality.     Another  eniment. 
fact  of  hardly  less  importance  is  the  development  of  democ- 
racy.    It  must  not  be  supposed  that  the  terms  development 


IK 


The  American  Federal  State 


Nationality 
and  colonial- 
ism. 

Cf.  Mace, 
Method,  145- 
149. 

Cf.  Johnston, 
in  Lalor,  I, 
930-935. 


Nationality 
and  democ- 
racy. 


of  nationality  and  growth  of  the  national  government  are 
synonymous.  The  former  includes  the  latter ;  but  while  a 
spirit  of  nationality  must  sooner  or  later  lead  to  a  strong 
national  government,  it  means  rather  a  similarity  in  all 
social,  economic,  and  political  institutions  in  the  different 
parts  of  the  nation,  and  a  common  feeling  on  the  part  of 
all  citizens  with  regard  to  matters  of  national  concern.  In 
a  brief  sketch  it  is,  of  course,  impossible  to  more  than  indi- 
cate some  of  the  steps  by  which  the  people  of  the  United 
States  became  united ;  but  an  effort  will  be  made  to  show 
how  this  was  done  by  tracing  two  kinds  of  changes :  first, 
those  directly  connected  with  the  national  government; 
secondly,  those  produced  by  alterations  in  state  laws  and 
customs.  The  importance  of  the  different  movements  by 
which  the  action  of  the  states  on  the  many  subjects  left  to 
their  supervision  became  more  uniform,  has  been  largely 
overlooked  by  most  of  our  historians,  and  the  study  of  the 
subject  is  of  recent  date. 

140.  Three  Periods  of  National  Development.  —  For  the 
sake  of  convenience  the  development  of  nationality  during 
the  era  from  1789  to  1877  will  be  treated  under  three  heads. 
The  first  covers  a  period  of  about  twenty-five  years  in  which 
nationality  was  making  a  struggle  for  an  existence  worthy  of 
the  name.  The  chief  obstacles  in  its  path  came  from  past 
conditions,  such  as  the  dependence  of  the  states  upon 
Europe  instead  of  upon  each  other,  the  extraordinary 
strength  of  particularism,  the  distinctions  in  social  classes, 
and  the  lack  of  economic  independence,  which  is  one  of 
the  essentials  of  national  Hfe.  The  second  period  begins 
with  the  changes  following  the  War  of  181 2  and  the  over- 
throw of  Napoleon.  Its  most  marked  characteristic  is  the 
growth  of  a  national  democratic  spirit  which  breaks  away 
from  traditions  in  every  line,  and  reaches  a  climax  in  the 
two  decades  following  1830.  The  third  period  is  that  in 
which  the  slavery  question  is  most  prominent.  The  terri- 
torial expansion  which  led  directly  to  slavery  agitation  began 
about  1845.    The  struggle  between  free  and  slave  labor  to 


Nationality  and  Colonialism  117 

see  which  should  be  made  national  resulted  in  the  triumph  Nationality 
of  the  former,  and  through  war,  not  only  destroyed  slavery,  ^"'^  slavery, 
but  removed  the  conditions  which  underlay  the  slave  sys- 
tem, and  came  near  injuring  the  rights  of  states  to  which 
slavery  had  appealed  in  its  extremity.  It  must  not  be  sup- 
posed that,  because  the  national  era  is  divided  into  periods 
named  from  the  most  striking  characteristic,  each  period 
marks  the  beginning  and  close  of  that  movement.  For 
example,  we  must  not  imagine  that  democracy  exerted  no 
influence  before  181 5  or  after  1845,  but  before  1815  it  is 
less  prominent  than  colonialism,  and  after  1845  '^'^  sinks  into 
insignificance  before  the  contest  over  slavery. 

141.  Conditions  affecting  Nationality  (1790).  —  The  most  Anti-national 
important  influences  that  kept  the  states  apart  in  1790  were  conditions, 
particularism,  sectionalism,  and  physical  conditions.  Except 
for  their  interest  in  the  national  government  and  their  per- 
sonal loyalty  to  the  great  leader  who  had  been  made  Presi- 
dent, the  people  of  the  states  felt  their  separateness  from 
each  other.  The  peculiar  customs  and  occupations  of 
colonial  times  gave  way  very  slowly  to  new  methods.  Few 
persons  ever  crossed  state  boundaries  so  as  to  enter  into 
sympathy  with  their  neighbors.  Sectionalism  was  an  addi- 
tional disadvantage,  especially  as  gradual  emancipation  at 
the  North  tended  to  separate  the  sections  more  on  the 
slavery  question.  But  it  was  the  antagonism  between  the 
commercial  and  agricultural  interests  that  presented  even 
a  graver  danger  at  this  time.  These  tendencies  toward 
separateness  could  have  been  easily  overcome  had  there 
existed  railroads  and  telegraph  lines  as  at  present,  but  means 
of  communication  were  very  imperfect.  Even  if  travelling 
was  not  dangerous,  it  was  attended  by  very  great  discom- 
forts. It  took  three  days  to  get  word  from  New  York  to 
Boston,  and  a  month  to  go  from  Maine  to  Georgia  by  water. 

To  counterbalance  these  anti-national  influences  were  all   National 
of  the  similarities  of  race,  language,  and  of  religious,  social, 
and  political  institutions,  the  common  commercial  interests, 
and,  most  of  all,  the  new  central  government  clothed  with 


ii8 


The  American  Federal  State 


The  problem 
of  establish- 
ing the  new 
government 


English  cus- 
toms followed, 
Cf.  Ford. 
Amer.  Poli- 
tics, chap,  VI. 


The  presi- 
dential suc- 
cession. 

Cf,  Ford, 
chap.  VI. 


Executive 
departments 
under  the 
Confedera- 
tion. 


such  power  that  it  could  represent  the  whole  country  with 
honor. 

142.  Organization  of  the  Government:  the  President. — 
The  new  national  government  was  like  a  great  machine 
which  had  been  carefully  constructed,  but  whose  usefulness 
was  yet  to  be  proved.  No  one  knew  how  well  the  parts 
would  work  together,  how  much  political  steam  would  be 
required  to  run  it,  and  whether  that  much  steam  could  be 
produced,  or  whether  the  machine  might  not  prove  so 
efficient  that  it  would  be  cast  aside  by  the  overcautious 
people  as  a  menace  to  the  rest  of  the  political  system,  that 
is,  to  the  rights  of  the  states  and  the  liberty  of  the  individual. 

That  the  government  proved  a  success  was  largely  due  to 
the  personal  popularity  of  Washington  and  his  judgment 
both  in  the  selection  of  advisers  and  in  the  choice  of  poU- 
cies.  He  had  been  chosen  unanimously  by  the  electors,  and 
was  inaugurated  with  considerable  pomp.  He  had  gone  to 
Congress  with  a  coach  and  six,  had  read  his  speech  like  an 
EngHsh  King  addressing  a  Parliament.  The  speech  had  been 
discussed  at  length  in  committee  of  the  whole,  and  a  reply 
had  been  framed  according  to  the  English  custom.  Through 
this  speech  and  the  secretaries'  reports,  the  executive  had 
exerted  very  great  influence  in  legislation;  but  both  the 
President  and  the  heads  of  departments  had  been  formally 
excluded  from  the  floor  of  Congress. 

Washington  might  have  made  our  system  more  like  that 
of  England  had  he  chosen  to  accept  office  for  more  than  two 
terms.  Even  as  it  was,  a  custom  grew  up,  like  that  used  in 
the  mother  country,  of  selecting  as  chief  executive  the  lead- 
ing party  man  who  had  been  trained  in  administrative  work 
and  who  was  the  "  heir  apparent."  This  custom  lasted  until 
supplanted  in  1829  by  the  democratic  custom  of  choosing 
popular  heroes  irrespective  of  training. 

143.  The  Executive  Departments.  —  It  seemed  to  have 
been  pretty  generally  understood  in  the  Convention  that  a 
large  part  of  the  work  of  the  executive  should  be  carried  on 
through  departments.     During  the  Revolutionary  War  and 


Nationality  and  Colonialism  119 

the  Confederation,  matters  pertaining  to  foreign  affairs, 
finance,  and  war  had  been  dealt  with  at  first  by  boards, 
and  after  1781  by  heads  of  departments  aided  by  other 
officials.  After  the  resignation  of  Superintendent  of  Finance 
Morris,  Congress,  dreading  such  efficiency,  went  back  to  the 
board  system  for  the  Treasury ;  but  foreign  affairs,  war,  and 
the  post-office  remained  in  charge  of  single  individuals. 

Abandoning  the  board  system  altogether,  Congress  during  Departments 
the  summer  of  1789  organized  three  departments,  while  the  reo^amzed 
President  was  given  two  other  assistants.     The  departments 
were  those  of  State,  the  Treasury,  and  War ;  the  assistants  fX»^rfSi/^j 
were  the  Attorney-general  and  the  Postmaster-general.    The   1, 93-96. 
three  secretaries  and  the  Attorney-general  in  time  came  to  waiker, 
form  the  President's  cabinet,  which  was,  from  the  character  ^'ation,  88- 
of  our  system,  essentially  different  from  the  Enghsh  cabinet.  ' 
The  secretaries  could  not  be  members  of  Congress,  and 
the  only  times  they  attempted  to  speak  in  either  house  the 
effort  was  unproductive  of  results.     Nevertheless  they  did, 
largely  through  the  influence  of  Hamilton,  follow  the  English 
method  of  making  themselves  felt  in  the  making  of  laws ; 
though  as  later  cabinets  contained  men  of  less  political 
force,  this  influence  was  largely  temporary. 

Z44.    The  Congress.  —  The  method  of  election  for  mem-   Methods  of 

bers  of  the  House  shows  the  lack  of  uniformity  in  political  ^'^<^*'°°- 

methods  prevailing  throughout  the  country.     In  some  states  McMaster, 

congressmen  were  chosen  by  districts,  in  other  states  on  a  j  "'^       "' 

general  ticket.  There  was  no  set  day,  and  in  certain  locali- 
.        ,  „  ,  ,  ,  T^  ,        Hart,  Union, 

ties  the  polls  were  kept  open  two  or  three  weeks.     Even  the   j  73, 

ballot  was  not  in  use  everywhere. 

The  House  was  at  first  more  powerful  than  the  Senate,   Organization 

probably  on  account  of  its  more  popular  character  and  the  o^^^e  House. 

importance  of  financial  measures,  but  the  Senate  gradually  Schouler, 

made  good  its  claim  to  a  coordinate  position.     The  speaker  j  "gc^t     * 

was  chosen  as  a  mere  presiding  officer,  like  those  in  most  of 

the  colonial  assemblies  and  the  House  of  Commons ;  but 

after  1790  had  the  appointment  of  temporary  committees, 

and  later  became  a  party  leader.     As  the  amount  of  business 


120 


The  American  Federal  State 


Secret  ses- 
sions of  the 
Senate. 


The  judici- 
ary act 
(1789). 

Schouler, 
United  States , 
1.96-97- 

Cooley, 
Cons f  I  Hist., 
4*-Sa- 


Relative  un- 
importance 
of  the  judici- 
ary. 


Chisholm  v. 

Georgia 

(1792). 

Walker. 
Nation,  127, 
128. 


was  small,  the  system  of  standing  committees  did  not  come 
immediately  into  use,  but  was  gradually  developed. 

During  the  first  five  years  the  business  of  the  Senate  was 
transacted  behind  closed  doors,  but  on  many  important 
measures  we  know  that  the  decision  rested  on  the  vote  of 
the  Vice-president. 

145.  The  Judiciary.  —  The  organization  of  the  courts, 
which  by  the  Constitution  had  been  left  to  Congress,  was 
part  of  the  work  of  the  first  session.  A  law  was  passed  in 
September,  1 789,  providing  for  a  supreme  court,  three  circuit 
courts,  and  a  number  of  district  courts,  each  covering  a  part 
or  the  whole  of  a  state.  Six  justices  were  appointed  for  the 
Supreme  Court.  There  were  no  separate  circuit  judges,  but 
the  work  of  each  circuit  court  was  left  to  two  justices  of  the 
Supreme  Court  and  the  judge  of  the  district  in  which  the 
session  was  held.  As  assistants  of  the  judges,  attorneys  and 
marshals  were  appointed  for  four  years. 

The  relative  importance  attached  to  the  duties  of  the 
Supreme  Court  may  be  appreciated  when  we  know  that 
before  1801  five  appointments  to  the  chief  judgeship  had 
been  made,  two  of  which  were  decHned,  one  rejected  by 
the  Senate,  and  two  accepted  only  to  be  given  up  later  for 
more  attractive  ofiices.  In  sharp  contrast  with  these  changes 
is  the  long  term  of  Chief  Justice  Marshall,  from  1801  to  1835, 
during  which  he  not  only  established  the  claim  of  the  court 
to  a  position  by  the  side  of  the  other  departments,  but  gave 
incalculable  strength  to  the  national  government. 

In  the  first  important  case  decided  by  the  court,  Chisholm 
V.  Georgia,  in  1792,  Justice  Iredell  had  upheld  the  extreme 
national  theory  of  the  Constitution,  and  the  court  had 
decided  that  a  state  might  be  sued  by  a  citizen  in  a  United 
States  court.  This  so  alarmed  the  advocates  of  particularism 
that  the  eleventh  amendment  was  proposed  and  ratified  in 
1798.  This  was  a  serious  blow  to  the  judiciary  and  to 
nationalism  as  well. 

The  lack  of  discretion  with  which  the  Federalists  used 
the  powers  of  the  central  government  during  the  adminis- 


Nationality  and  Colonialism  121 

tration  of  Adams  (§  153)  produced  a  widespread  belief  that 
the  interpretation  of  the  Constitution  could  not  safely  be  left 
to  the  national  courts  by  virtue  of  their  jurisdiction  over 
"cases  arising  under  the  Constitution."  In  consequence,  Marburyy. 
the  reasoning  of  Marshall  and  the  decision  in  Marbury  v.  (jgo^). 
Madison  (1803)  was  of  especial  moment.  The  chief  justice 
showed  that  unless  the  court  could  interpret  the  Consti- 
tution, and  set  aside  a  law  conflicting  with  it,  Congress 
would  be  unrestrained  in  the  use  of  legislative  power.  He 
applied  his  argument  by  declaring  unconstitutional  a  law 
which  would  have  increased  the  jurisdiction  of  the  Supreme 
Court,  and  thus  readily  gained  acquiescence  in  the  stand 
taken. 

146.  Questions  of  Policy :  Finance.  —  The  most  important  influence  of 
matters  to  be  decided  by  the  new  government  in  1 789  were  ^^'"•i*°"- 
those  relating  to  finance,  foreign  poHcy,  and  the  execution   Mace, 

/■  1  Manual.  i<C2- 

of  laws.  j^8. 

In  the  creation  of  a  system  of  finance  the  master  mind  of 

,,       .,  ,  ,        .  ™,  _.  Macdonald, 

Hamilton  was  everywhere  predommant.     The  great  Secre-  Documents, 

tary  of  the   Treasury  had   in  view  three  objects:   (i)  to  46-76,98- 

establish  the  national  credit  on  a  firm  basis;  (2)  and  most 

important,  to  strengthen  the  national  authority;  and  (3)  to  ^°"  ^1°!^*' 

aid  in  the  industrial  development  of  the  country.     To  this   i,  80-105. 

end  he  proposed  three  things  :   ( i )  different  kinds  of  taxes ; 

(2)  payment  in  full  of  the  public  debts;  (3)  the  creation 

of  a  national  bank  to  assist  the  government  in  caring  for 

its  business  interests. 

147.  Revenue.  —  The  first  revenue  act  passed  by  Congress 
(1789)  was  one  imposing  duties  on  imports  with  a  view  also 

to  "  the  encouragement  and  protection  of  manufactures."  Customs  and 

After  Hamilton  made  his  famous  report  on  manufactures  ^^^^^ 

two  years  later,  this   tariff  was  several  times  revised,  and 

Walker, 
the  duties  raised.     This  revenue  was  supplemented  by  the  Nation,  84- 

excise  upon  liquors  which  was  a  form  of  internal  revenue  87.  X44-M7. 

that  brought  certain  manufacturers  into  close  contact  with  Johnston, 

the  government.    These  excises  caused  considerable  oppo-  '"  ^'^'°'''  "• 

sition,  especially  in  Pennsylvania  where  the  distillers  of  the 


122 


The  American  Federal  State 


Three  classes 
of  debt. 

Walker, 
Nation,  78- 
81. 


Compromise 
over  assump)- 
tion. 

McMaster, 
United  States, 
1.579-583- 


Its  purpose. 


mountain  districts  organized  what  is  known  as  the  Whiskey 
Rebellion.  But  the  new  government  was  as  energetic  in 
enforcing  its  laws  as  it  had  been  fearless  in  making  them, 
and  this  added  greatly  to  its  prestige.  Later  a  tax  on  car- 
riages (1794)  was  added,  and  in  1798  the  first  direct  tax 
was  levied  upon  slaves,  houses,  and  lands.  When  the  Repub- 
licans came  into  power,  they  repealed  the  internal  revenue 
laws,  to  which  they  had  been  opposed ;  and  except  for  a 
brief  period  during  the  War  of  181 2  the  sole  sources  of 
revenue  until  the  Civil  War  were  customs  and  the  pubhc 
lands. 

148.  The  Public  Debts. — The  second  great  financial 
measure  dealt  with  the  domestic,  foreign,  and  state  debts. 
Hamilton  was  anxious  to  show  that  the  United  States  always 
paid  its  debts  in  full,  so  that  he  might  attract  the  commercial 
classes  to  the  new  government.  In  order  to  increase  the 
national  power  to  as  great  an  extent  as  possible,  he  also 
wished  to  have  the  government  assume  the  debts  incurred 
by  the  states  during  the  Revolutionary  War.  He  encountered 
no  serious  difficulty  in  persuading  Congress  to  assume  all  of 
the  foreign  debt  and  very  little  in  inducing  it  to  pay  all  domes- 
tic bonds  at  their  face  value ;  but  the  last  proposition  —  the 
assumption  of  state  debts  —  was  vigorously  opposed  by  those 
states  whose  debts  were  either  insignificant  or  had  already 
been  paid.  As  it  happened,  these  states  were  largely 
devoted  to  agriculture,  and  were  further  offended  by  the 
secretary's  anxiety  to  please  persons  interested  in  commerce. 
In  order  to  gain  enough  votes  for  the  measure,  Hamilton 
agreed  that  several  Northern  votes  should  be  cast  in  favor  of 
having  the  new  capital  on  the  Potomac,  and  this  only 
incensed  the  Southern  agricultural  interests  the  more. 
While  these  measures  gave  the  United  States  a  financial 
standing  it  has  never  wholly  lost,  it  may  well  be  questioned 
whether  the  country  did  not  pay  too  high  a  price  for 
"  state  assumption." 

149.  The  National  Bank.  —  To  facilitate  the  transaction 
of  business  by  the  government,  and  to  give  the  people  the 


Natiofiality  and  Colonialism  123 

benefits  of  a  national  paper  currency,  Hamilton  in  1 790  pro- 
posed a  national  bank  upon  the  model  of  the  Bank  of  Eng- 
land.    The  bill  creating  such  a  bank  was  carried  in  the  face 
of  considerable  opposition,  which  was  based  upon  the  sup- 
posed unconstitutionality  of  the  measure.    When  it  was  sent 
to  Washington,  he  asked  the  advise  of  his  cabinet  upon  it. 
The   opinions   of   Jefferson   and    Hamilton   are   especially 
important,    because    they   definitely    formulate   views    on 
"  strict "   and   "  loose "    construction   of  the   Constitution.  Jefferson's 
Jefferson  showed  that  the  power  to  create  a  bank  was  not  a'^thi^uhe 
among  those  expressly  delegated  to  Congress.     He  argued  bank, 
that  a  bank  was  not  a  " necessary  and  proper"  means  of   Macdonald, 
carrying  out  the  financial  policy  of  that  body,  because  it  Documents, 
could  get  along  without  it ;   and   finally,  he  declared  that  ^     ^' 
if  the  national   legislature  could  decide  what  means  were 
"necessary  and  proper,"  it  would  invade  the  sphere  of  the 
states  and  destroy  their  rights. 

Hamilton  just  as  unequivocally  indorsed  the  doctrine  of   Hamilton  on 
"  implied  powers."     He  called  attention  to  the  fact  that  the  ^^^H 

states  and  the  nation  have  different  spheres  of  action,  and 

iTT-ir-  ■  •  T...  Macdonald, 

that  the  United  States  is  sovereign  within  its  own  sphere.  81-98, 

He  claimed  that  "  implied "  as  well  as  "  express  "  powers  ^n    th  d    - 

were  delegated,  and  showed  that  the  use  of  an  implied  trine,  see 

power  to  supplement  an  express  power  could  not  injure  a  Channing 

state  if  the  object  for  which  both  were  used  was  one  not  Guide,  6  159, 

reserved  to  the  states.     He  further  claimed  that  "  the  rela-  and  Siory, 

Hon  between  the  measure  and  the  end,  between  the  nature  ^^^^ 

of  the  mean  employed  toward  the  execution  of  a  power,  {{ 1242- 

and  the  object  of  that  power,  must  be  the  criterion  of  con-  ^^^S-) 

stitutionality,  not  the  more  or  less  of  utility." 

Washington  accepted  the  view  of  Hamilton  and  signed  Doctrine  of 

the  bill.     The  legislative  and  executive  departments  were  "^P''^j^  P^'^J' 
°  *  ers  indorsed. 

thus  finally  committed  to  the  doctrine  of  "  implied  powers," 
at  least  during  the  Federalist  regime,  and  in  18 19,  when 
discussing  the  constitutionality  of  the  second  United  States 
bank,  the  Supreme  Court  accepted  the  same  view  (§  168, 
see  also  §  325). 


124 


The  American  Federal  State 


Foreign 
dependence. 

Mace, 

Method, 

158-164. 


Proclama- 
tion of 
Neutrality 

Macdonald, 
ZI2-114. 


Disappear- 
ance of  the 
Anti-federal- 
ists. 


Followers  of 

Jeflferson 

organize. 

Johnston,  in 
Lalor,  1 ,  769. 


150.  Foreign  Affairs.  —  On  account  of  our  isolation,  for- 
eign affairs  were  much  less  important  than  they  would  have 
been  had  our  immediate  neighbors  been  powerful.  Nev- 
ertheless, we  were  dependent  upon  Europe  for  so  many 
things  that  the  danger  of  foreign  complications  and  conse- 
quent European  domination  was  very  grave.  We  had  been 
saved  from  French  control  in  1783  by  the  independent 
action  of  our  peace  commissioners.  In  the  troublous 
"  Napoleonic "  times,  which  unfortunately  coincided  very 
nearly  with  the  first  quarter  century  of  our  constitutional 
history,  greater  ditficulties  were  Hkely  to  come  up.  The 
first  crisis  was  reached  when  the  war  between  England  and 
revolutionary  France  broke  out.  Though  the  country  was 
divided  into  two  great  camps  and  feeling  ran  high,  the  bold 
and  independent  attitude  of  Washington  in  the  Proclamation 
of  Neutrality  (1793)  placed  us  outside  of  the  sphere  of 
European  politics.  Although  this  did  not  relieve  us  from 
some  forms  of  European  domination,  it  did  more  than  any- 
thing else  could  have  done  to  give  us  a  high  international 
position.  The  comparative  failure  of  Jay's  treaty  with 
England  (i  794),  and  the  X.  Y.  Z.  Mission  in  France  (i  798), 
must  be  charged  to  the  condition  of  Europe,  and  to  the  fact 
that  we  had  not  yet  risen  from  the  fourth  rate  nation  of  the 
Confederation  to  a  first  rate  power. 

151.  Formation  of  Parties:  the  Democratic-Republican. — 
It  is  very  remarkable  that  the  Anti- federalist  party  ceased  to 
exist  with  the  adoption  of  the  Constitution.  Those  persons 
who  had  at  first  been  opposed  to  the  new  government 
acquiesced  in  it,  but,  as  a  rule,  favored  the  restriction  of  its 
power  as  much  as  possible.  They  naturally  alUed  them- 
selves with  the  party  that  believed  in  the  "  strict "  construc- 
tion of  the  Constitution. 

During  the  first  term  of  Washington  there  were  no  well- 
defined  parties ;  but  the  natural  antagonism,  personal  and 
political,  between  Hamilton  and  Jefferson,  caused  the  per- 
sonal following  of  those  statesmen  to  take  different  sides  on 
almost  every  question  that  came  up.     The  controversy  over 


Nationality  and  Colonialism  125 

the  national  bank  may  be  said  to  have  placed  the  parties 
on  a  definite  footing,  the  followers  of  Jefferson  holding  to  a 
"  strict "  construction  of  the  Constitution,  those  of  Hamil- 
ton to  a  "  loose  "  construction,  involving  the  use  of  "  im- 
plied "  powers.  But  in  addition  to  their  attitude  toward  the 
Constitution,  the  party  of  Jefferson,  or  the  Democratic- 
Republicans,  adopted  the  views  of  their  leader  on  foreign 
and  domestic  questions.  They  wished  to  have  the  govern- 
ment show  its  sympathy  with  the  French  Republicans,  and 
they  believed  that  government  should  be  as  far  as  possible 
of  the  people  as  well  as  for  the  people.  Since  the  state 
governments  seemed  to  be  closer  to  the  people  than  the 
national  government,  they  wished  to  restrict  the  central 
authority  and  strengthen  that  of  the  localities. 

152.  Federalist  Party.  —  The  Federahsts  disagreed  in  Views  of  the 
every  respect  with  the  Democratic-Republicans.  They  be-  Federalists, 
lieved  not  only  in  a  strong  national  government,  but  thought 
success  could  be  attained  solely  through  government  by  the 
aristocracy,  the  "  well  born,"  and  by  alliance  with  the  com- 
mercial classes,  while  to  them  democracy  meant  mob  rule. 
The  excesses  of  the  French  Revolution  increased  their  ad- 
miration for  the  stability  of  the  English  system,  so  that  a 
deep  chasm  separated  the  French  and  the  English  party. 

Undoubtedly  party  divisions  have  great  disadvantages,  and  Benefits  of 
were  in  a  sense  justly  condemned  by  Washington  in  his  P^"^'^^- 
Farewell  Address ;  but  they  have  been  absolutely  necessary 
to  our  proper  constitutional  development,  and  have  exercised 
the  very  greatest  influence  on  our  history.  They  have  fixed 
the  interests  of  the  people  on  the  government,  have  edu- 
cated and  organized  public  sentiment,  have  carried  out  popu- 
lar wishes  in  the  administration  of  government  with  little 
friction  or  disorder,  and  by  the  watchfulness  of  the  "  outs  " 
have  held  the  party  in  power  responsible  for  all  its  acts.  In 
doing  this  they  have  often  resorted  to  vile  abuse,  have  more 
than  once  pandered  to  popular  prejudice  or  ignorance,  and 
have  aided  materially  in  developing  certain  vicious  political 
principles. 


126 


The  American  Federal  State 


Anti-foreign 
laws  of  the 
Federalists 
(1798). 

Channing, 
\  208. 

Macdonald, 
Documents^ 
137-148. 


The  Republi- 
can protest. 

Channing, 
$209. 

Macdonald, 
148-160. 


153.  The  Alien  and  Sedition  Laws.  —  Although  parties  did 
not  exist  at  first,  the  new  government  had  been  run  from 
the  beginning  on  Federalist  principles,  but  the  Democratic- 
Republicans  had  been  gradually  gaining  ground.  During 
the  administration  of  Adams  the  bold  stand  of  the  Fed- 
eralists regarding  foreign  affairs  won  for  them  such  a  measure 
of  popular  approval  that  they  accepted  the  verdict  of  the 
elections  as  an  indorsement  of  their  whole  policy.  On  this 
account  they  proceeded  to  apply  their  principles  in  their 
most  extreme  form.  The  result  was  the  passage  of  three 
laws  (1798),  passed  ostensibly  to  protect  the  country  against 
foreigners,  but  quite  as  much  for  the  purpose  of  silencing 
Federalist  critics.  The  Naturalization  Act  required  a  resi- 
dence of  fourteen  years  before  a  foreigner  could  become  a 
citizen;  the  Alien  Act  gave  the  President  power  to  expel 
aliens  whom  he  considered  dangerous  to  the  community ; 
and  the  Sedition  Act  provided  penalties  for  those  who 
defamed  the  government.  The  day  had  gone  by  when  such 
arbitrary  government  would  be  peaceably  accepted  by  the 
people.  In  the  uproar  that  followed,  the  power  of  the  na- 
tional authority  must  have  been  greatly  weakened,  perhaps 
injured  beyond  repair,  had  not  the  storm  spent  its  force  on 
the  Federalist  party.  This  had  two  good  results,  — it  assured 
the  continued  existence  of  the  central  government,  and  it 
made  parties  realize  that  they  were  the  servants  of  the 
people. 

154.  Virginia  and  Kentucky  Resolutions  (1798-1799).  — 
Yet  it  had  one  influence  that  in  the  light  of  later  history  was 
unfortunate.  The  contest  had  been  changed  from  one  of 
government  and  people  to  one  between  the  Federalists  and 
the  Republicans  by  organizing  the  opposition  to  the  Federal- 
ist policy.  Jefferson  and  Madison  believed  they  could  do 
this  most  effectively  by  persuading  the  state  legislatures  to 
protest  (1798)  against  the  laws  as  in  excess  of  the  powers 
conferred  upon  the  central  government.  These  protests  are 
commonly  called  the  Virginia  and  Kentucky  Resolutions. 
They  declare  that  when  the  national  government  exceeds  its 


Nationality  and  Colonialism  127 

authority,  the  laws  are  of  no  effect ;  and  a  later  resolution 
(1799)  from  Kentucky  stated  that  "nullification"  was  the 
"  rightful  remedy."  Most  of  the  other  states  disclaimed  the  Nullification, 
right  to  interpret  national  laws,  but  the  principle  that  a  state 
could  declare  a  law  of  Congress  null  and  void  grew  till  some 
sections  believed  that  they  should  go  further  than  a  declara- 
tion and  actually  interfere  with  the  execution  of  that  law. 

155.  The  Revolution  of  1800.  —  In  the  election  of  1800  The  disputed 
the  Federalists  lost  so  much  ground  that  the  Democratic-  Presidential 

...  election. 

Republicans  had  a  clear  majority  m  the  electoral  "  college  "  ; 
but  owing  to  the  method  then  in  use  each  elector  voted  for  /^^")^°°^' 
two  persons,  and  the  one  that  stood  highest  was  declared  54-73. 
President,  while  the  one  that  stood  second  was  Vice-presi- 
dent. For  the  first  time  the  electors  that  year  merely  regis- 
tered the  vote  of  their  party ;  but  it  happened  that  the  vote 
was  a  tie,  as  Jefferson  and  Burr  had  seventy-three  each. 
Jefferson  was  the  real  nominee  of  his  party  and  should  have 
been  chosen  at  once,  but  according  to  the  Constitution  the 
decision  was  left  to  the  House  of  Representatives.  After  a 
protracted  contest  in  which  the  Federalists  threw  most  of 
their  strength  to  Burr,  Jefferson  was  elected.  Soon  after 
a  new  amendment,  the  twelfth,  was  proposed  so  that  the 
electors  designated  whether  the  vote  was  cast  for  President 
or  Vice-president. 

The  election  of  Jefferson  was  marked  by  many  changes   Effect  of  the 
which  were,  in  the  opinion  of  that  leader,  sufficient  to  call  Revolution, 
the  election  a  revolution.     Class  rule  began  to  disappear.  Hart,  Union, 
Republican   simplicity  was   introduced   everywhere.     The   **  94-97- 
inaugural  presaged  a  wise   and   moderate  rule  with  such   Channing, 

vv  22^*^226 

alterations  only  as  should  give  better  and  more  popular 
government.  The  internal  revenue  system  was  gradually 
abolished,  and  the  strong  naval  policy  of  Adams's  adminis- 
tration gave  place  to  the  "  gunboat "  scheme.  All  monarchi- 
cal tendencies  were  checked,  and  a  current  was  created  in 
the  opposite  direction. 

156.  The  Purchase  of  Louisiana The  first  important 

question  that  came  before  Jefferson's  administration  was 


12$  The  American  Federal  State 

Events  that  of  Louisiana.     Difficulties  over  the  navigation  of  the 

*^°th"ni  Mississippi  had  led  to  the  appointment  of  commissioners  to 

purchase.  secure  the  purchase  of  the  Isle  d'Orleans  so  that  we  should 
control  all  of  the  east  bank  of  the  river.  While  we  were 
negotiating  for  this  strip  there  came  from  Napoleon  an  offer 
to  sell  all  of  Louisiana,  which  was  most  unexpected  but 
gladly  accepted  by  the  commissioners,  the  President,  and  the 
people.  As,  however,  doubts  existed  as  to  the  constitution- 
ality of  the  purchase,  Jefferson  recommended  a  constitu- 
tional amendment  authorizing  the  acquisition  of  territory. 
Before  that  could  even  be  considered  Louisiana  came  into 
our  possession. 
Upon  157.   Influence  of  the  Purchase.  —  The  influence  of  the 

construction  purchase  was  very  wide-reaching.  Even  though  an  amend- 
Constitution.  ment  might  legalize  such  acts,  it  could  not  make  this  par- 
Walker  Na-  t^^^^^r  purchase  constitutional.  The  party  which  had  spent 
Hon,  180-184,  years  developing  a  strict  constructionist  poHcy  had  made  a 
Davis,  S,  M.,  ^ore  liberal  use  of  implied  powers  than  their  much  abused 
in  A.  H.  A.  predecessors.  Strangely  enough  this  breach  with  the  past 
1^1-160.  ^"  "°  ^^^^  injured  the  party  strength,  for  popular  approval 

of  the  acquisition  was  so  pronounced  that  the  Republicans 
gained  ground  everywhere.     Consequently,  after  1803,  strict 
construction  could  never  mean  the  same  that  it  had  before. 
Upon  the  Upon  the  Federalists  the  purchase  exerted  fully  as  much 

Federalists,  influence.  They  had  never  recovered  from  the  Alien  and 
Sedition  Acts,  and  from  their  unpatriotic  action  in  the  elec- 
tion of  1800.  As  the  party  out  of  power,  their  loose  con- 
struction policy  had  lost  most  of  its  force,  and  was  an  injury 
rather  than  a  benefit.  The  whole  trend  of  society  was  away 
from  their  idea  of  class  rule,  and  now  by  the  adoption  of  a 
liberal  interpretation  of  the  Constitution  the  Republicans 
had  taken  all  the  wind  out  of  their  sails.  Add  to  this  the 
strenuous  opposition  to  the  purchase  for  narrow  sectional 
reasons,  and  it  is  not  surprising  that  the  Federalists  prac- 
tically disappeared. 

Only  the  future  could  reveal  what  the  effect  of  the  pur- 
chase would  be  on  later  history.    There  were  many  who 


Nationality  and  Colonialism  129 

thought  our  country  too  large  for  union  without  Louisiana,  Upon  the 

and  believed  that  we  would  break  up  into  a  number  of  sec-  ^"*"'"*  °5 

^  nationality, 

tions.     In   spite  of  the  great   system   of  navigable   rivers  democracy, 

permeating  the  Mississippi  basin,  it  was  a  serious  question  ^"'^  slavery. 

whether  the  different  parts  of  the  country  could  be  kept  in 

touch  with  each  other.     The  chief  danger  lay  in  imperfect 

communication,  and  in  1803  no  means  for  greatly  improved 

transportation  had  been  devised.     But  if  there  was  doubt  as 

to  the  influence  on  nationality,  there  could  be  none  along 

other  lines.    The  most  serious  difficulties  likely  to  arise  from 

having  a  powerful  neighbor  at  our  very  door  were  removed. 

The  democratic  movement  which  was  making  such  progress 

in  the  West  would  have  room  to  develop,  and  real  popular 

government  was  assured  as  the  West  was  now  larger  than  the 

East.     The  field  left  open  to  slavery  was  increased,  but  only 

one  vertex  of  the  triangle  was  at  the  South  while  the  North 

claimed  two. 

158.  Foreign  Domination.  —  With  the  exception  of  the  ityi  Humiliation 
years  during  the  Confederation  the  period  of  greatest  im-   °^  ''^^  nation, 
potence  in  foreign  affairs  occurred  between  1805  and  181 1. 

The  abnormal  condition  of  Europe  was,  of  course,  largely  s^udfnfs^^' 
responsible  for  this  foreign  domination,  for  we  could  not  Amer.  Hist., 
separate  ourselves  from  the  war  conditions  which  prevailed   ^^  288-295. 
elsewhere  in  the  civilized  world,  and  consequently  had  the   Hart,  Union, 
choice  of  submission  to  indignities  or  war.     The  administra-   *'  ^°^~^    ' 
tion   of  Jefferson  tried  to   grapple  with   the   problem   by 
restraining  American    commerce    in   order    to   injure   our 
foreign  foes.     To  do  this  it  was  necessary  to  use  national 
powers  nowhere  delegated.     But  embargoes  and  non-impor- 
tation acts  injured  us  more  than  they  did  either  England  or 
France ;  while  we,  duped  by  both  powers,  sank  to  the  lowest 
depths  of  international  degradation. 

159.  Nationalist  Reaction. — The  humiliation  of  our  po-   Influence  of 
sition  appealed  so  strongly  to  the  younger  branch  of  the  ^  g*^  ^^"^ 
Republican  party,  that  without  fully  comparing  the  insults  nationality. 
we   had   received   from   both    France    and   England   they 

brought  the  government  to  declare  war  on  the  latter.     The 


ISO 


The  American  Federal  State 


Walker, 
Nation, 
chap.  XIII. 


Influence  of 
the  West  in 
developing 
democracy. 

Turner,  F.  J., 

in  report  of 

Herbart 

Society, 

V,  lo,  28-41. 


war  itself  was  little  better  than  a  farce,  as  England  was  too 
much  taken  up  with  her  contest  on  the  continent  to  spare 
many  war  ships  for  America,  but  it  was  productive  of  many 
direct  and  many  more  indirect  benefits.  The  indirect  re- 
sults will  be  considered  later.  Of  the  direct  results  all  were 
favorable  to  nationality.  ( i )  The  people  were  so  disgusted 
with  the  failures  of  the  previous  decade  that  they  united 
in  support  of  the  national  wing  of  the  Republican  party. 
(2)  The  New  England  Federalists,  whose  opposition  to 
the  war  was  based  on  grounds  excellent  in  themselves,  but 
purely  sectional,  gave  their  party  its  death  blow  when  they 
seemed  to  be  aiming  at  secession  in  the  Hartford  Conven- 
tion (181 4).  (3)  The  humiliation  felt  at  the  burning  of 
Washington,  and  the  joy  over  the  victories  of  Perry,  Mac- 
donough,  and  Jackson  quickened  in  different  ways  the 
national  pride. 

160.  The  Westward  Movement.  —  During  this  quarter 
century,  from  1790  to  1815,  many  of  the  evidences  of  colo- 
nialism in  the  states  were  swept  away  by  the  growing  de- 
mocracy. The  levelling  movement  in  society  and  in  politics 
which  succeeded  the  Revolutionary  War  spent  much  of  its 
force  before  1 789,  and  would  have  produced  but  few  other 
radical  changes  had  it  not  been  for  the  new  impulse  given 
by  the  occupation  of  the  West. 

Frontier  settlements  are  always  unfavorable  to  social  and 
other  distinctions.  In  the  great  migrations  that  took  place 
from  England  to  the  Atlantic  coast  most  of  the  prominent 
class  inequalities  of  the  mother  country  were  left  behind. 
The  same  thing  occurred  when  the  country  west  of  the 
AUeghanies  was  settled  in  the  years  following  1 780,  for  here 
every  one  was  on  the  same  footing  from  the  first.  These 
conditions  so  easily  established  were  preserved  largely  for 
the  sake  of  inducing  others  to  come.  Universal  suffrage, 
lack  of  limitations  on  trade,  abundant  land,  and  a  more 
real  equality  before  the  law  went  far  to  compensate  for  the 
rough  frontier  life,  so  that  immigration  was  large.  Soon  the 
older  states,  moved  both  by  the  spirit  of  the  times  and  a 


Nationality  and  Colonialism  131 

desire  to  retain  their  inhabitants,  began  to  modify  their  laws 
still  more.  The  most  important  changes  in  the  East  came 
after  1815  ;  but  progress  before  that  date  was  sure,  even  if 
not  rapid. 

161.  The  State  Constitutions.  —  The  progress  in  the  states  Changes 
was  registered  by  the  constitutions.     As  it  always  required  ^^^^|"  ^n^ 
considerable  agitation  to  alter  the  fundamental  law  of  a 
commonwealth,  and  as  our  forefathers  were  politically  more    ^  °^'//-  * 
conservative  than  we,  it  is  readily  seen  that  the  three  Western   1, 263-266. 
states  could  not  at  once  raise  the  political  level  of  the  whole.   McMaster 
Between  1776  and  1790  seventeen  new  constitutions  were  United  states, 
adopted  besides  the  adaptation  of  the  charters  of  Rhode     '  ^^^'^   ' 
Island  and  Connecticut.    Between  1791  and  1815  there  were 
but  nine,  of  which  only  two  were  in  the  original  thirteen 
states.     Of  course,  as   the   constitutions   were   brief   and 
touched  upon  few  details,  many  matters  might  be  changed 
by  statute  which  would  now  find  a  place  in  the  constitutions ; 
yet  as  the  most  important  subjects  were  regulated  by  con- 
stitutional law,  this  accounts  for  the  few  extensions  of  the 
franchise  and  for  the  failure  of  the  democratic  movement  to 
alter  state  institutions,  or  to  leave  a  lasting  impression  upon 
anything  but  the  statute  law.     Some  progress,  however,  had 
been  made  through  the  constitutional  amendments,  some 
of  which  had  abolished  state  aid  to  church  institutions  and 
religious  qualifications  for  office. 


QUESTIONS  AND   REFERENCES 
The  National  Era  (§§  1 39-141) 

1.  Compare  the  degree  of  nationality  in  1790  and  to-day  by  show- 
ing the  difference  in  power  of  the  central  government,  and  the  feeling 
of  the  people  toward  matters  of  common  interest. 

2.  Show  how  state  laws  and  customs  have  become  more  uniform. 

3.  What  are  periods  of  history?  What  is  the  exact  use  of  dates  in 
marking  the  beginning  and  close  of  such  periods?  Would  our  periods 
of  United  States  history  be  the  same  if  we  were  studying  social  history, 
industrial  history,  military  history,  literary  history?  Can  you  suggest 
limits  for  periods  in  these  cases? 


132  The  American  Federal  State 

4.  Has  human  progress  the  last  few  centuries  favored  nationality 
and  centralization  ?  Prove.  Which  century  has  aided  in  this  move- 
ment  most?  why? 

Organization  of  the  Qovemment  (§§  142-145) 

1.  Show  what  features  of  the  new  governmental  organization  were 
distinctively  English.     Did  they  tend  to  become  more  or  less  so? 

2.  What  is  the  difference  between  the  English  and  the  American 
ideas  of  a  cabinet?  Has  the  lack  of  constitutional  provision  regarding 
executive  officers  been  a  help  or  a  hinderance?  What  was  the  most 
important  executive  department  and  why? 

3.  What  precedents  do  you  find  for  the  Supreme  Court  as  to  organi- 
zation, jurisdiction,  or  methods? 

Questions  of  Policy  (§§  146-150) 

a.  Different  views  of  Hamilton's  policy  are  given  by  Lodge  in  his 
Hamilton,  84-135,  and  in  Sumner's  Hamilton,  144-199. 

1.  Did  Hamilton  fail  to  secure  any  one  of  the  objects  he  sought? 
Give  an  estimate  of  the  influence  of  his  financial  measures  upon  the 
national  government. 

2.  To  what  extent  have  we  followed  Hamilton's  policy  in  our  his- 
tory?    Which  taxes  proposed  by  him  do  we  have  now? 

3.  Should  the  difference  in  amount  between  the  Northern  and 
Southern  state  debts  have  affected  the  payment?  Was  assumption 
necessary?  was  it  constitutional?  was  it  wise? 

4.  What  is  the  difference  between  strict  construction  in  1793  and 
now?  Could  the  constitution  have  survived  without  the  use  of  "  im' 
plied  powers  "  ? 

5.  Make  a  brief  outline  of  French  history  from  1789  to  1802.  Was 
the  Proclamation  the  right  or  merely  the  safe  course?  Does  our  con- 
duct of  foreign  affairs  before  1815  show  a  colonial  dependence  on 
Europe  or  the  contrary? 

Political  Parties  (§§  151-154) 

a.  On  the  Alien  and  Sedition  Laws,  cf.  Johnston,  in  Lalor,  I,  56-58; 
with  Ford,  Amer.  Politics,  109-I I4. 

b.  For  further  information  on  the  Virginia  and  Kentucky  Resolu- 
tions, see  Johnston,  in  Lalor,  II,  672-677;  Ford,  ibid.,  1 14-120;  Von 
Hoist,  Consfl  Hist.,  I,  142-167. 

I.  What  is  necessary  that  we  may  have  parties?    Would  it  be  desir- 


Nationality  and  Colonialism,  133 

able  to  dispense  with  national  parties  if  it  were  possible  ?    Explain  your 
answer. 

2.  To  what  extent  did  personal  feelings  enter  into  the  formation  of 
the  first  parties?  to  what  extent  French  issues?  constitutional  questions? 

3.  In  what  particulars  did  each  party  represent  the  past?  the  future? 

4.  In  what  respects  did  the  Alien  and  Sedition  Acts  fail  to  conform 
to  republican  principles? 

5.  Did  nullification  mean  the  same  in  1798,  in  1814,  in  1828? 
State  clearly  all  differences.  What  truth  is  there  in  the  doctrine? 
what  error? 

6.  Give  all  the  reasons  you  can  why  the  Federalist  party  went  to 
pieces  after  1800.  What  part  of  the  work  was  of  permanent  value? 
Was  there  a  "  revolution  of  1800  "  ?     Give  your  reasons  in  full. 


Republican  Supremacy  (§§  15 5- 161) 

a.  Look  up  the  embargo  in  Channing,  §§  235-237;  Schouler,  United 
States,  II,  178-199;  Von  Hoist,  Const' I  Hist.,  I,  200-216;  Johnston,  in 
Lalor,  II,  80-84. 

1.  Show  the  part  played  by  the  navigation  of  the  Mississippi  in  our 
history  before  1803.     What  were  the  boundaries  of  Louisiana  purchase? 

2.  Was  the  purchase  of  Louisiana  constitutional? 

3.  If  you  had  been  living  in  1803,  and  knew  nothing  of  our  later 
history,  what  would  have  appeared  to  you  as  the  advantages  of  the 
purchase?  its  disadvantages?  Consider  its  effect  on  the  whole  coun- 
try, or  sections,  on  the  powers  of  the  central  government,  as  a  means 
of  perfecting  or  injuring  union,  upon  future  policies,  etc. 

4.  Outline  European  history  from  1802  to  1815.  Why  were  the 
British  Orders  in  Council  and  French  decrees  issued?  Was  the 
embargo  a  greater  injury  to  America  or  to  Europe? 

5.  What  objections  did  New  England  offer  to  the  war?  What  was 
the  purpose  of  the  Hartford  Convention?  What  constitutional  amend- 
ments were  proposed  by  it?    Did  it  favor  nullification?  secession? 

6.  Name  all  of  the  events  from  1789  to  181 5  which  showed  a 
dependence  on  Europe.  Summarize  all  changes  in  social,  political, 
and  economic  conditions  during  that  period. 


CHAPTER  VII 

NATIONALITY  AND   DEMOCRACY  (1815-1845) 
General  References 

Johnston,  American  Politics,  chaps.  IX-XV. 

Channing,  Studenfs  History,  367-442, 

Hart,  Formation  of  the  Union,  223-262  (to  1829). 

Wilson,  Division  and  Reunion,  I-I15  (from  1829).  This  is  the  third 
volume  of  the  Epochs  of  American  History.  It  is  a  little  more 
discursive  than  Hart's  Formation  of  the  Union,  but  an  excellent 
account. 

Burgess,  Middle  Period,  1-288.  A  scholarly  book  devoted  to  the  politi- 
cal and  constitutional  history  connected  with  the  national  gov- 
ernment. 

Stanwood,  History  of  the  Presidency,  106-225. 

Ford,  Rise  and  Growth  of  American  Politics,  130-216. 

Benton,  Thirty  Years'   View. 

Von  Hoist,  Constitutional  History,  I,  302-II,  466. 

Schouler,  United  States,  IlI-IV. 

McMaster,  United  States,  IV-V  (to  1825).  Volume  V  gives  quite  a 
little  information  on  democracy. 

Thorpe,  Constitutional  History.  2  volumes.  The  best  book  on  democ- 
racy and  constitutional  development  in  the  states. 

De  Tocqueville,  Democracy  in  the  United  States  (1831).  A  philo- 
sophical description  of  political  institutions  and  of  political  and 
social  conditions.     Very  valuable. 

Qeveland,  Grozvth  of  Democracy,  parts  of  chaps.  VIII-XIV.  Ex- 
cellent for  reference. 

The  following  from  the  American  Statesmen  Series  deal  with  this 
period :  Sumner's  Jackson,  Oilman's  Monroe,  Morse's  /.  Q.  Adams, 
Schurz's  Clay,  Lodge's  Webster,  Von  Hoist's  Calhoun,  Magruder's 
Marshall,  Shepard's  Van  Buren,  McLaughlin's  Cass. 

In  the  American  Commonwealth  Series,  Carr's  Missouri,  Cooley's 
Michigan,  Browne's  Maryland,  and  Robert's  New  York  deal  with 
certain  important  phases. 

Larned,  History  for  Ready  Reference. 

»34 


Nationality  and  Democracy  135 

Lalor's  Cyclopedia,  articles  by  Johnston  on  Controversies,  Tariff,  Nul- 
lification, Bank  Controversies,  Judiciary,  Compromises,  IV:  by 
Koerner  on  Monroe  Doctrine,  and  Knox  on  Banking  in  the 
United  States. 

162.  The  Movement  toward  Democracy. —  Before  1815  the  impetus 
way  had  been  fully  prepared  for  the  development  of  both  ^^^qJ\<^^ 
nationality  and  democracy,  and  in  the  period  following  the 

war  both  advanced  with  tremendous  strides.  The  war  had 
done  two  things  :  it  had  produced  a  new  set  of  conditions, 
and  it  had  awakened  a  new  spirit  in  the  people.  The  activi- 
ties of  all  kinds  following  the  treaty  of  Ghent  (1814)  were 
in  marked  contrast  with  the  comparative  stagnation  preced- 
ing it.  Perhaps  the  most  fateful  of  the  new  movements  was 
the  rapid  expansion  of  the  West.  Immigration  was  large, 
and  the  territories  were  rapidly  prepared  for  statehood, 
f'ully  abreast  with  the  advanced  ideas  of  the  times,  the 
new  constitutions  were  an  influence  felt  all  over  the  coun- 
try. The  East,  infused  with  new  life,  adopted  a  series  of 
constitutions  that  showed  the  progress  democracy  had 
made.  Little  by  little  the  democratic  wave  removed  the 
survivals  of  colonialism.  The  national  and  the  state  govern- 
ments were  transformed,  if  in  any  way  they  failed  to  respond 
to  democracy ;  new  political  methods  were  introduced,  and 
different  ideas  gained  ground.  The  wave  reached  its  height 
about  1840  in  the  West,  and  a  little  later  in  the  East.  It 
then  gradually  began  to  subside  as  people  came  to  realize 
that  after  all  democracy  was  not  the  panacea  for  all  political 
ills.  But  with  all  its  faults,  democracy  had  taught  many 
lessons  in  the  art  of  self-government,  and  proved  a  great 
aid  in  the  development  of  nationality. 

163.  Economic  Changes.  —  During  the  early  part  of  the  Conditions 
century,  machinery  had  begun  to  take  the  place  of  hand  f^^orabie  to 
labor  in   the   production   of    the   world's    products.     The 

change  from  the  old  or  house  plan  to  the  new  or  factory 
system  began  in  the  United  States  about  18 10.  Soon  after 
the  blockade  of  our  coasts  by  British  war  vessels  made  it 
necessary  to  manufacture  what  we  had  formerly  imported. 


136 


The  American  Federal  State 


Tariff  of 
1816. 

Burgess, 
Middle 
Period,  8-13. 


Creation  of 
the  second 
national 
bank. 

Burgess, 
ibid.,  3-8. 

Johnston,  in 
Lalor,  I, 
201-204. 


Army  and 
navy  reor- 
ganization. 

Burgess, 
ibid.,  13-14. 

Settlement 
of  the  West. 


As  our  war  with  England  ended  about  the  time  Napoleon 
was  finally  expelled  from  Europe,  and  as  the  return  to  peace 
conditions  was  followed  by  very  great  production  in  England, 
we  found  our  markets  flooded  with  goods  imported  from 
abroad.  In  order  to  keep  our  infant  industries  from  being 
overwhelmed,  it  was  necessary  to  place  restrictions  upon 
competing  goods,  by  the  establishment  of  a  higher  tariff 
based  on  the  principle  of  protection.  It  is  indicative  of  the 
national  sentiment  of  the  people  that  the  vote  on  the  tariff" 
of  1 8 16  was  not  sectional,  and  that  strong  support  of  the 
measure  came  from  the  South  and  West. 

164.  The  United  States  Bank.  —  It  must  be  taken  into 
account  that  this  tariff  was  passed  by  the  Republican  party, 
now  the  only  one  in  existence.  How  far  they  had  deserted 
their  old  principles  may  be  seen  by  other  nationalistic  meas- 
ures. The  charter  creating  the  bank  of  1 791  had  expired  in 
181 1,  and  the  bill  to  recharter  it  was  defeated  by  a  very  close 
vote  in  both  houses ;  but  the  failure  of  the  favorite  republi- 
can devices  to  meet  the  demands  for  money  placed  the 
finances  of  the  country  in  a  very  bad  condition.  To  assist 
the  government  in  its  difficulty,  as  well  as  to  bring  order  out 
of  the  financial  chaos,  a  new  bank  much  stronger  and  more 
national,  withal  more  democratic  than  the  first  one,  was  pro- 
posed. The  bill  creating  this  was  passed  without  serious 
opposition. 

About  the  same  time  the  army  and  navy  were  reorganized 
on  a  peace  footing,  and  in  both  cases  the  party  gave  up  its 
former  opposition  to  a  strong  military  and  naval  policy  by 
making  them  much  more  efficient  than  even  under  the  Fed- 
eralists. 

165.  The  Westward  Movement  and  Internal  Improvements. 
—  The  extent  of  the  migration  to  the  West  may  be  judged 
from  the  growth  of  population  in  that  section.  In  1810 
Ohio  had  230,760  inhabitants;  in  1820,581,295.  Indiana's 
population  increased  during  the  same  decade  from  24,520  to 
147,178;  lUinois's  from  12,282  to  55,162;  Alabama's  from 
about  20,000  to  127,901,  and  others  in  the  same  propor- 


Nationality  and  Democracy 


137 


tion.  During  the  six  years  following  the  war,  six  states  were 
admitted,  all  but  Maine  being  in  the  West. 

This  movement  was  not  entirely  unaided  by  the  national 
government  which  sought  to  unite  the  East  to  the  West  by 
national  roads  and  canals,  A  beginning  was  made  in  1806 
when  money  was  appropriated  for  the  Cumberland  Road, 
though  when  (1808)  Gallatin  suggested  his  famous  scheme 
of  many  canals  but  Httle  had  been  done,  owing  to  the  failure 
of  the  surplus.  An  attempt  was  now  made  (18 16)  to  cre- 
ate a  permanent  fund  for  internal  improvements,  but  failed 
through  the  veto  of  President  Madison,  who  doubted  its 
constitutionality.  Although  much  was  done  later,  the  oppor- 
tunity was  thus  lost  to  strengthen  the  national  government, 
and  the  states  were  left  the  construction  of  the  great  high- 
ways which  were  invaluable  before  the  advent  of  the  railway. 

166.  The  Missouri  Compromises.  —  At  the  first  there  had 
been  opposition  to  the  admission  of  new  states,  based  on 
sectionalism  or  prejudice.  Suggestions  had  been  made  in 
the  Convention  of  1787  that  the  new  states  should  never 
outnumber  the  old  ones,  but  happily  it  found  no  favor.  In 
1803  the  acquisition  of  Louisiana  territory,  and  in  181 2  the 
admission  of  the  state  of  the  same  name,  were  the  occasions 
for  threats  of  secession  from  New  England.  But  after  181 5 
the  old  grounds  for  opposition  disappeared,  and  the  only 
important  issue  involved  in  state  admission  was  that  of 
slavery.  Care  had  been  taken  to  keep  a  balance  between 
the  slave  and  the  free  states  before  that  time,  but  it  became 
much  more  prominent  with  the  increased  westward  migra- 
tion. The  importance  attached  to  slavery  as  an  issue  in 
state  admission  was  clearly  brought  out  in  the  debate  on  the 
petition  from  Missouri  to  enter  the  Union  (1818-1820). 
Tallmadge's  amendment  to  the  bill  for  admission  in  favor 
of  gradual  emancipation  was  the  signal  for  battle.  As  the 
South  was  more  united  in  its  action  than  the  North,  the 
South  was  able  to  control  the  Senate,  but  the  three-fifths 
provision  left  it  hopelessly  in  the  minority  in  the  House. 
After  the  greater  part  of  two  sessions  of  Congress  had  been 


Internal  im- 
provements 
by  national 
government. 

Hart,  Union, 
\\  121,  136. 


Slavery  and 
state 

admission 
before  1820. 


The  Com- 
promise. 

Johnston,  in 
Lalor,  I, 
549-552- 

Macdonald, 
Documents, 

Von  Hoist. 
Const'l  Hist, 
356-381. 


138 


The  American  Federal  State 


Burgess, 
Middle 
Period, 
61-103. 


Conflict 
between 
nationality 
and  slavery 
postponed. 

Cf.  Burgess, 
ibid.,  103- 
107. 


Its  influence 
in  developing 
nationality. 

Hart,  Union, 
§125. 

Channing 
and  Hart, 
Guide,  §  175. 


taken  up  over  discussions,  the  deadlock  was  broken  by  the 
compromise  that  Missouri  should  be  admitted  as  a  slave 
state  with  Maine  as  a  free  state,  while  slavery  should  be 
"forever  prohibited"  in  other  parts  of  Louisiana  territory 
north  of  36°  30'.  A  second  compromise  (1821)  permitted 
the  entrance  into  the  state  of  free  negroes  who  were  citizens 
of  any  other  state. 

167.  Effect  of  the  Compromises.  —  These  compromises 
settled  temporarily  at  least  two  points  of  the  highest  impor- 
tance :  one  dealing  with  constitutional  law,  the  other  with 
political  history.  First,  it  was  decided  that  after  a  state 
asked  for  admission  Congress  could  not  impose  upon  it  any 
important  condition,  but  must  allow  it  to  decide  for  itself 
what  its  attitude  should  be  on  all  subjects  with  which  the 
national  government  could  not  afterward  interfere  within  its 
limits.  Second,  the  contest  between  nationality  and  slavery 
was  postponed  thirty  years,  much  to  the  advantage  of  the 
former,  which  was  steadily  gaining  ground.  How  effectual 
the  settlement  of  the  question  was  considered  is  apparent 
from  the  fact  that  parties  were  not  created  by  the  different 
opinions  on  the  issue  of  slavery.  Thoughtful  men,  however, 
realized  that  in  this  sectionalism  was  the  great  danger  to  the 
Union,  but  believed  that  while  sectionalism  would  continue 
to  exist,  the  36°  30'  compromise  had  made  conflict  between 
it  and  nationality  impossible.  The  great  gain  to  the  central 
government  came  from  the  clearer  definition  of  its  power  to 
control  the  public  territory  which  was  expressly  stated  by  all 
of  Monroe's  cabinet  and  universally  admitted. 

168.  The  Supreme  Court.  —  The  influence  of  the  Supreme 
Court  in  developing  the  power  of  the  national  government 
at  this  time  can  hardly  be  overestimated.  The  court  had 
adopted  a  moderate  tone,  had  distinctly  excluded  political 
questions  as  such  from  its  jurisdiction,  and  had  won  general 
approval  by  its  fairness  (§381).  It  was  quick  to  take 
advantage  of  the  national  spirit  produced  by  the  war,  and 
to  make  that  spirit  a  permanent  force  in  the  central  govern- 
ment    Beginning  with  1816  a  series  of  important  decisions 


Nationality  and  Democracy  139 

was  rendered  especially  by  Chief  Justice  Marshall  and  Jus- 
tice Story.  Two  of  these  in  18 16  and  182 1  made  good  the 
claim  of  the  court  to  try  on  appeal  cases  begun  in  state 
courts  but  involving  national  law,  even  when  the  state  pro- 
tested against  this  use  of  appellate  jurisdiction  by  the 
Supreme  Court.  In  McCulloch  v.  Maryland  (1819)  Mar- 
shall sustained  the  constitutionality  of  the  national  bank  and 
denied  the  right  of  state  to  tax  one  of  its  branches.  In 
doing  this  he  said  that  the  laws  of  the  United  States  were 
supreme  within  their  sphere,  and  that  if  a  power  was  dele- 
gated to  the  United  States  government,  it  might  select  what 
means  it  considered  best  in  the  performance  of  its  duty. 
The  same  year  in  the  Dartmouth  College  Case  the  clause 
prohibiting  the  states  from  passing  laws  impairing  the  obliga- 
tion of  contracts  was  held  to  apply  to  the  alteration  of  char- 
ters granted  by  the  states.  These  and  other  decisions  of 
similar  character  made  it  possible  for  the  central  govern- 
ment to  use  its  granted  powers  with  greater  effect,  and  acted 
as  a  check  on  the  states.  The  decisions  caused  consider- 
able opposition,  but  their  enforcement  was  not  successfully 
resisted  till  the  famous  Cherokee  Case  in  1831  (§  176). 

169.   Foreign  Affairs. — When  John  Quincy  Adams  became  The  Monroe 
Secretary  of  State  in  181 7,  our  foreign  relations  began  to      o'^^""^- 
feel  the  effect  of  the  bolder  attitude  of  the  people.     The  Hart,  Union, 
most  famous  instance  of  the  new  policy  is  embodied  in 
what  is  known  as  the  "Monroe  Doctrine."     In  the  years  .^°^'^?*^'^' „ 

^  in  Lalor,  II, 

following  Waterloo  the  principal  monarchies  of  Europe  had  898-900. 
formed  the  Holy  Alliance  for  the  suppression  of  republican  Macdonaid 
doctrines  within   their  own   borders   and    in   other   states.   Documents, 
When  they  sought  to  apply  their  reactionary  principles  to  ^^  ~^^°' 
the  revolted  Spanish-American  states,  Canning,  the  prime 
minister  of  Great  Britain,  asked  the  support  of  the  United 
States  in  a  protest  against  this  course.     After  due  delibera- 
tion it  was  refused,  but  Monroe  in  his  message  to  Congress 
(December,  1823)  stated  that  we  intended  to  take  no  part 
in  the  affairs  of  European  states,  and  that  we  should  look 
upon  "  any  attempt  on  their  part  to  extend  their  system  to 


140 


Tlie  American  Federal  State 


Extension  of 
the  franchise. 

McMaster, 
United 
States,  V, 
380-394. 

Schouler, 
Const' I 
Studies,  231- 
248. 


Other  demo- 
cratic ten- 
dencies. 


any  portion  of  this  hemisphere  as  dangerous  to  our  peace 
and  safety."  He  further  declared  that  we  should  not  inter- 
fere with  any  other  colonies,  but  that  we  should  consider 
any  eflfort  to  reconquer  the  South  American  states  "  as  the 
manifestation  of  an  unfriendly  disposition  toward  the  United 
States."  This  is,  of  course,  in  no  respect  a  principle  of 
international  law.  It  is  a  statement  of  American  policy, 
which  was  not  at  that  time  construed  as  placing  upon  us 
any  obligation  for  the  acts  of  our  Southern  neighbors. 

170.  Democracy  in  the  States  (1815-1830).  —  Meanwhile 
a  majority  of  the  states  had  been  adopting  new  constitu- 
tions. Those  of  the  states  in  the  Northwest  were  more 
democratic  than  the  others.  They  had  no  qualifications  for 
voters  except  residence,  and  required  a  much  briefer  resi- 
dence for  state  officials  than  the  East  or  South.  The  new 
Southern  states  had  a  liberal  franchise,  but  demanded  prop- 
erty qualifications  of  governors  and  assemblymen.  Among 
the  older  states,  Maryland  had  abolished  property  qualifica- 
tions for  voters  in  18 10,  and  practically  all  the  others  Hmited 
it  to  a  nominal  sum  or  required  only  payment  of  taxes.  In 
its  new  constitution.  New  York  gave  the  suffrage  (1821)  to 
free  negroes,  but  only  in  case  they  owned  property.  We 
may  judge  of  the  changes  in  the  franchise  by  comparing 
the  proportion  of  voters  in  1800  with  that  of  1830.  In 
1800  it  is  estimated  that  one  hundred  and  fifty  thousand 
men  could  vote,  or  one  voter  to  every  thirty-five  inhabitants. 
In  1830  the  number  of  possible  voters  was  over  a  million 
and  a  quarter,  or  about  one  in  ten. 

The  final  separation  of  Church  and  State  took  place  in 
New  England,  beginning  with  Connecticut  in  181 8  and  end- 
ing with  Massachusetts  in  1833. 

Several  other  important  tendencies  are  observable  between 
1815  and  1830,  due  to  the  influence  of  democracy.  The 
constitutions  are  becoming  larger  and  more  detailed,  requir- 
ing more  frequent  revision.  The  appointment  of  officials  is 
giving  way  to  elections  for  short  terms.  Officials  are  paid 
more  in  money  and  less  in  the  dignity  of  their  positions. 


Nationality  and  Democracy  141 

Bills  of  rights  are  taken  as  a  matter  of  course,  more  atten- 
tion being  paid  to  applying  them  in  laws,  and  finally  the 
states  are  trying  new  experiments  in  legislation,  in  internal 
improvements,  in  banking,  and  even  in  loaning  money  to 
the  agricultural  classes. 

171.  Party  Changes  (1820-1845).  —  ^^  the  nation  after  Separation 

1820  tended  to  sink  back  into  the  old  ruts  of  particularism,  Sf  *® 

^  '    Democratic- 

the  majority  of  the  only  political  party  in  existence  returned  Republicans 
to  a  little  stricter  construction  of  the  Constitution.     This   imoacon- 

1  11  r  .        .         .  .  servative 

attitude  was  so  unacceptable  to  a  powerful  mmonty  that,  and  a  liberal 

under  the  lead  of  Clay,  they  gradually  united  to  form  a  new  wing, 

party  called  at  first  National  Republicans,  and  afterward  Wilson. 

Whigs.    Their  cardinal  doctrines  were   internal  improve-  ■^*^"""*  "'*'' 

.  *•  Reunion, 

ments  and  protection,  both  of  which  they  believed  to  be  ^  9, 10, 55. 
authorized  by  the  Constitution.     Their  greatest  strength  lay   Johnston  in 
in  the  Northeast,  which  was  the  manufacturing  district ;  and  Laior,  III, 
in  the  Northwest,  which  looked  to  the  national  government   ^°°^"^°°8- 
for  aid  in  developing  its  territory.     As  the  states  began  to 
spend  more  on  roads  and  canals,  and  as  later  the  railroads 
made  public  expenditures  for  such  purposes  less  necessary, 
the  Whigs  lost  ground  in  the  West  and  were  able  to  carry 
that  section  only  through  the  personal  popularity  of  their 
Western  leaders.     In  consequence,  the  Whigs  never  obtained 
complete  control  of  all  departments  of  the  government,  and 
seldom  had  a  majority  in  Congress. 

172.  New  Political  Methods:   Convention  System.  —  We  a  democratic 

should  naturally  expect  to  find  democracy  introducing  many  ^y^'^.™  °^ 

•'       *  '  !•  •     1         J       nomination, 

radical  changes  in  the  methods  used  to  gain  political  ends, 

and  such  is  the  case.     Not  satisfied  with  being  able  to  pass  a  J^j"^^  j"'  "* 

final  decision  on  men  and  measures  at  the  polls,  it  demanded   1040. 

the  initiative  in  poUtical  affairs.     In  doing  this  a  system  of   stanwood. 

nominating  conventions  came  into  use.     Formerly  the  poll-  Presidency, 

,  166— XT'? 

ticians  already  in  power  had  been  in  the  habit  of  holding  a 
caucus  for  the  nomination  of  its  candidates,  and  this  was  ^°\^'  '^'""'• 
simply  political  class  rule.     But  as  the  party  out  of  power  chap.  XVI. 
could  not  do  this  because  it  had  so  few  representatives  in 
Congress  or  the  legislature,  "  outs  "  or  new  parties  became 


142 


The  American  Federal  State 


Dallinger, 
Nomination 
for  Elective 
Office,  13-45. 


The  cam- 
paign and 
the  party 
"  machine." 

Ford,  Amer. 

Politics, 

144-149. 


New  popular 
interest  in 
the  chief 
executive. 

Mace, 

Manual, 

192-196. 

Ford,  Amer. 
Politics, 
chap.  XV. 


accustomed  to  having  delegates  chosen  from  different  coun- 
ties to  state  conventions.  In  1831  the  Anti- masonic  move- 
ment, seeking  to  perfect  its  organization,  held  a  national 
convention.  The  example  was  quickly  followed  by  the  great 
parties,  which,  in  many  cases,  adopted  resolutions  stating 
their  policy.  The  latter  in  time  grew  into  the  platform,  now 
an  indispensable  part  of  the  work  of  a  national  convention. 

173.  Other  Methods.  —  As  each  party  was  bidding  for 
popular  support,  every  effort  was  made  to  obtain  votes. 
Two  of  the  most  important  methods  introduced  were  the 
campaign  and  machine  organization.  In  the  first,  voters 
were  to  be  attracted  by  the  popular  love  of  display  and  by 
"  stump  speaking."  The  later  presidential  elections  of  1840 
and  1844  were  the  best  examples  of  this.  Even  more 
reliance  was  placed  on  more  perfect  party  organization. 
The  "  machine  "  was  not  a  new  thing,  for  Tammany  Hall 
had  used  methods  Hke  those  of  the  present  many  times 
since  it  was  formed  in  1789,  but  now  the  party  "boss" 
became  a  recognized  power  in  political  circles,  while  federal 
and  state  patronage  were  used  to  control  votes.  Bribery 
was  more  frequently  used,  and  the  wretched  system  of  the 
open  ballot  boxes  made  intimidation  of  voters  and  "  stuffing" 
of  the  boxes  not  only  possible,  but  quite  common.  The 
political  products  of  democracy  were  as  yet  of  the  crudest 
kind,  and  it  required  years  to  sift  out  the  good  and  to 
reject  the  less  perfect. 

174.  The  Presidency  made  Democratic.  —  Strange  as  it 
may  seem  to  us  now,  the  presidential  elections  before  1824 
were  attended  with  little  excitement  or  even  interest.  So 
accustomed  had  the  people  become  to  having  their  chief 
magistrate  selected  for  them  that  they  made  no  effort  to 
overthrow  the  "Virginia  dynasty"  and  the  custom  by  which 
the  former  Secretary  of  State  became  President.  Such  a 
system  would  do  very  well  for  England  or  the  United  States 
as  long  as  it  was  satisfied  with  colonialism,  but  democracy 
demanded  that  the  President  be  its  representative.  The 
change  from  the  old  method  to  the  new  may  be  illustrated 


Nationality  and  Democracy  143 

by  comparing  the  elections  of  1820  and  1828.  In  1820 
there  was  no  opposition  to  President  Monroe  in  spite  of  the 
tremendous  agitation  over  the  Missouri  question,  and  the 
vote  polled  in  some  states  was  absurdly  light.  In  1828 
Jackson  had  been  nominated  by  the  people  through  the 
legislatures,  as  the  convention  had  not  yet  been  devised  for 
the  purpose.  The  vote  was  incomparably  greater  than  in 
1820,  and  much  more  than  double  that  of  1824.  In  later 
elections  the  democratic  influences  were  the  predominant 
ones  both  in  choosing  the  leader  and  in  deciding  the 
election. 

175.  Results  of  the  Change  in  the  Executive.  —  The  trans-  President 
formation  of  the  presidency  by  bringing  the  President  close  ^^'"^ '° 
to  the  people  had  two  important  results.     In  the  first  place 

it  greatly  increased  the  power  of  the  executive.  Our  chief  j^anuai  ' 
magistrate  is  not  a  very  powerful  official  in  time  of  peace,  196-201. 
and  the  influence  exerted  by  Washington  and  Jefferson  had 
been  entirely  lost  by  their  successors.  Jackson,  relying  on 
popular  support,  restored  both  the  power  and  the  influence 
of  the  President.  He  used  the  veto  fearlessly,  met  Con- 
gress squarely  on  the  issue  of  the  bank,  and  then  appealed 
to  the  masses  to  justify  his  actions.  In  other  matters  he 
acted  with  vigor  if  not  with  skill.  To  him  not  precedent 
but  the  wishes  of  the  people  determined  the  constitution- 
ality of  national  law  and  of  executive  action. 

In  the  second  place,  democracy  introduced  into  the  na-  The  spoils 
tional  government  its  favorite  plan  of  short  terms  and  rota-  ^y*'*™- 
tion  in  office ;  in  short,  representation  of  the  people  in  the   Wilson, 
administration  of  affairs.     This  quickly  degenerated  into  the   /f'^'^'^„ 
"  spoils  system, "  which  has  done  so  much  to  render  all  of   §§  14-19. 
our  governments  inefficient.     Yet  it  was  not  only  the  legiti- 
mate but  the  necessary  product  of  democracy. 

176.  The  Cherokee  Case.  —  Two  of  the  most  important   Practical 
political  questions  affecting  nationality  that  came  up  between        '  cation. 
1830  and  1840  dealt  directly  with  the  doctrine  of  nullifica-   Von  Hoist, 
tion.     The  first  of  these  originated  in  an  effort  of  the  state   j  4^2-458.  ' 
of  Georgia  to  control  the  lands  of  the  Indian  tribes  within 


144  ^^^^  American  Federal  State 

Burgess.         its  bordcrs.     During  the  controversy  the  legislature  passed 
^"'''^'  a  law  extending  the  jurisdiction  of  the  state  over  the  terri- 

2I0-220.  tory  occupied  by  the  Cherokees.  The  Cherokees  at  length 
appealed  to  the  Supreme  Court  of  the  United  States,  but 
the  writs  of  error  addressed  by  the  court  to  the  state  re- 
quiring the  government  of  Georgia  to  show  cause  why  cer- 
tain persons  should  not  be  released,  were  completely  ignored. 
Late  in  1831,  in  the  case  of  Worcester  v.  Georgia,  the  court 
declared  the  Georgia  law  just  mentioned  to  be  null  and  void. 
Nevertheless,  the  state  proceeded  to  enforce  the  law  while 
President  Jackson,  whose  sympathies  were  naturally  not 
with  the  Indians,  but  who  was  legally  bound  to  execute 
the  decree  of  the  court,  refused  to  interfere,  declaring,  it  is 
said,  "  John  Marshall  has  pronounced  his  judgment,  let  him 
enforce  it  if  he  can."  This  actual  nullification  by  a  state 
of  the  national  law  did  much  to  counteract  the  nationalism 
created  by  previous  decisions  of  the  court.  Upon  the  court 
itself  its  effect  was  wide-reaching,  and  with  the  death  of 
Marshall  in  1835,  and  the  increased  number  of  judges  in 
1837,  democracy  united  with  states  rights  to  greatly  weaken 
the  judiciary. 
Protest  177.   Nullification  of  the  Tariff.  —  The  results  of  the  tariff 

against  tariffs  Qf  jgjg  were  disappointing  to  the  South:  and  as  cotton 

before  1832.  ....  ,  .       ,  /    „  ,      „    „ 

occupied  a  less  important  place  in  those  of  1824  and  1828, 
Middu'  many  of  the  Southern  states,  especially  South  CaroHna,  felt 
Period,  themselvcs  distinctly  aggrieved  by  these  "sectional  laws." 

170-182.  Y'lvt  legislatures  protested  against  the  tariff  of  1828,  and 

South  Carolina  adopted  Calhoun's  "  Exposition  "  declaring 
that  the  states  because  of  their  sovereignty  had  the  right  to 
veto  national  laws,  and  to  interpose  in  order  that  the  central 
government  should  be  forced  "  to  abandon  an  unconstitu- 
tional power." 
Nullification        As  the  tariff  of  1832  did  not  remedy  the  defects  pointed 
by  South         Q^^  ^y  South  Carolina,  that  state  immediately  met  in  con- 
vention and  declared  the  tariffs  of  1828  and  1832  null  and 
1/ T«  /  void,  giving  an  elaborate  argument  for  the  stand  taken,  and 

211-214.         prohibited  the  payment  of  duties  after  February  i,  1833. 


i 


Nationality  and  Democracy  145 

Jackson  disliked  the  South  Carolina  leaders  as  much  as  he  Wilson, 

did  the  Indians,  and  assumed  an  uncompromising  attitude.  ■^«^""'«  ««'=? 

He  declared  that  the  object  of  the  nuUifiers  was  disunion,  {^30,31,33. 

and  prepared  to  enforce  the  laws ;  but  rather  than  risk  a  joj^nston  in 

conflict,  Congress  passed  a  tariif  that  was  avowedly  non-  Laior,  ii, 

protectionist,  and  South  Carolina  repealed  its  nullification  ^oso-ioss- 
ordinance  (1833).     It  may  be  questioned  whether  the  state 
had  not  made  good  its  claim  to  nullify  a  law  of  all  the  states 
by  armed  interposition. 

178.  Other  Political  Questions.  —  While  nullification  was  TheWeb- 
trying  to  oppose  the  growth  of  national  influence  by  an  ster-Hayne 
assertion  of  state  rights,  the  people  were  given  clearer  ideas 

of  the  character  and  significance  of  the  claims  of  national   r  j^""'"^' 
and  state  sovereignty  in  the  Webster-Hayne  debate  (1830). 

^     .  ,  ...  .     .  ,         .  ,  Wilson, /(>/</., 

Owmg  to  the  conditions  existing  at  the  time,  the  represen-  k^  23, 24. 
tative  of  New  England  deserted  the  old  anti-national  posi- 
tion of  1803,  1806,  and  1 8 14,  coming  out  squarely  for  the 
national  theory  of  the  Constitution,  which  his  arguments  did 
much  to  impress  upon  the  country,  especially  the  North. 
On  the  other  hand,  Hayne  now  stood  for  the  doctrine  of  the 
past,  and  did  much  to  identify  the  cause  of  the  South  with 
the  idea  of  state  sovereignty  and  its  necessary  corollary  of  a 
compact  between  the  states. 

Although  the  United  States  Bank  was  the  most  national  The  United 
institution  of  its  day,  the  opposition  of  Jackson,  which  in  the   ^'^^^^  Bank, 
end  destroyed  it,  was  based  not  on  the  fact  that  it  was   Wilson, /<>/</,, 
national,  but  that  it  was  anti-democratic.     Yet  his  action  re-  '^~'''^' 
garding  the  bank  helped  democracy  less  than  it  injured   ?^'^f^' 
nationality.     In  the  placing  of  the  deposits  with  state  banks,  period, 
and  in  the  distribution  of  the  surplus  Jackson  undoubtedly  chaps.  IX, 
weakened  national  authority,  as  the  expenditure  of  the  same 
sums  directly  by  the  central  government  would  not  only  have 
given  it  prestige,  but  would  have  led  to  a  fuller  and  better 
use  of  the  "  implied  "  powers  than  were  involved  in  many 
cases  where  he  exercised  his  personal  authority. 

179.  Influences  Favorable  to  Nationality :  the  New  States. 
—  It  is  interesting  to  notice  that  so  far  in  our  history,  except 


146 


The  American  Federal  State 


Attitude  of 
the  West 
toward  the 
national 
government. 

Thoipe, 
Const' I  Hist., 
I,  264-266. 


Foreigners 
favored  the 
nation  rather 
than  the 
states. 


in  the  disputes  arising  over  the  navigation  of  the  Mississippi 
River,  all  of  the  tendencies  toward  disunion  and  most  of 
those  favorable  to  state  sovereignty  came  from  the  older 
commonwealths.  The  reason  for  this  is  evident.  The  old 
states  looked  upon  the  Union  as  their  creation ;  the  new  ones 
as  their  creator.  Nearly  all  of  the  territory  formed  into 
states  after  1789  had  at  some  time  been  under  the  absolute 
control  of  the  national  government.  When  these  new  states 
were  admitted  to  the  Union,  the  old  states  apparently  had 
nothing  to  do  with  it ;  Congress  passed  the  enabling  act, 
Congress  imposed  conditions,  if  such  there  were.  They  had 
no  local  traditions,  no  revolutionary  claim  to  sovereignty, 
no  institutions  productive  of  either  particularism  or  section- 
alism. They  favored  a  strong  national  government  for  for- 
eign affairs  and  for  internal  improvements,  and  only  in  the 
few  matters  directly  antagonistic  to  their  interests  did  they 
disapprove  of  national  authority. 

180.  Foreign  Immigration.  —  WTiile  the  interstate  migra- 
tions were  breaking  down  commonwealth  lines  in  the  West, 
the  influx  of  immigrants  from  all  parts  of  Europe,  espe- 
cially Great  Britain  and  Germany,  was  strengthening  the  na- 
tional sentiment  everywhere.  They  cared  nothing  for  the 
states  —  they  had  transferred  their  allegiance  to  the  United 
States.  Their  influence  began  to  be  felt  as  early  as  1840, 
but  it  was  only  after  the  great  migration  following  1848  that 
they  became  a  positive  force  in  this  country.  On  account 
of  slavery  in  the  South,  these  immigrants  avoided  competi- 
tion with  this  form  of  labor,  and  with  few  exceptions  settled 
in  the  North.  As  they  were  industrious  and  thrifty,  they 
increased  for  that  section  its  very  decided  advantages  in 
population,  wealth,  and  productive  power.  Had  it  been 
impossible  for  the  United  States  to  assimilate  so  large  a 
body  of  foreigners,  they  would  have  retained  all  their  old 
national  characteristics  of  race,  language,  and  customs, — 
but  this  was  nowhere  the  case, — and  even  if  the  first  gen- 
eration failed  to  become  truly  American,  it  was  never  so 
with  the  second.     Directly  and  indirectly  they  were  there- 


Nationality  and  Democracy 


H7 


fore  a  great  help  in  developing  a  national  sentiment  in  the 
North. 

i8i.  Improved  Means  of  Communication.  —  It  is  not  too 
much  to  say  that  no  larger  representative  state  can  continue 
to  exist  with  poor  means  of  communication.  The  invention 
of  the  steamboat  had  helped  to  solve  the  problem  of  com- 
munication in  the  West,  but  the  railway  has  been  a  much 
greater  unifying  factor  in  our  history.  It  not  only  has 
enabled  persons  to  travel  with  rapidity  and  ease,  but  it  has 
created  channels  for  trade  which  has  done  much  to  obliterate 
state  lines  in  commerce.  It  has  so  cheapened  the  cost 
of  marketing  products  as  almost  to  revolutionize  industry. 
The  first  railways  were  built  just  before  Jackson's  inaugura- 
tion, and  by  1840  nearly  three  thousand  miles  of  line  had 
been  completed.  PVom  that  time  on  progress  was  rapid- 
Following  in  its  steps  was  the  telegraph,  which  was  to  bring 
the  remotest  parts  of  the  country  into  immediate  communi- 
cation. With  these  material  advantages  it  was  impossible 
for  separateness  and  sectionalism  to  thrive. 

182.  Phases  of  Later  Democratic  Development  (1830- 
1860).  —  After  1830  democracy  continued  to  develop, 
though  perhaps  less  rapidly  than  in  the  preceding  decade. 
Its  growth  did  not  cease  with  1845,  has  not  in  fact  ceased 
yet,  but  after  that  date  it  was  overshadowed  by  the  conflict 
concerning  slavery.  The  attempt  is  made  in  the  following 
paragraphs  to  show  some  of  the  results  reached  between 
the  inaugurations  of  Jackson  and  Lincoln.  It  will  be  noticed 
that  almost  all  of  these  belong  to  the  sphere  of  the  states. 

183.  Changes  in  the  State  Constitutions  after  1830. — Dur- 
ing the  period  from  1830  to  i860  new  constitutions  were 
constantly  being  adopted  at  the  rate  of  about  one  a  year, 
and  the  new  constitution  of  any  state  was  affected  almost  as 
much  by  those  recently  made  by  its  neighbors  as  by  the  one 
previously  in  use  in  that  particular  state.  Practically  all  of 
these  were  proposed  by  conventions  called  for  the  purpose, 
and  were  ratified  by  popular  vote.  The  influence  of  democ- 
racy is  observable  along  several  Unes.    The  constitutions 


State  lines 
disappearing 
in  commerce. 


Slavery  be- 
comes the 
important 
question. 


Constitutions 
continue  to 
grow  demo- 
cratic. 

Thorpe, 
Canst'i  Hist., 
395-435  (esp. 
419-422), 
445.  446. 


148 


The  American  Federal  State 


The  gover- 
nor. 

Schouler, 
Const  I 
Studies,  267- 
aSa. 


The  legisla- 
ture ;  compo- 
sition. 

Schouler, 
Const' I 
Studies,  249- 
26s. 

Thorpe, 
Const' I  Hist., 
408-416. 


Changes  in 

legislative 

powers. 

Thorpe, 
ibid.,  11,416- 
418. 


left  less  to  the  discretion  of  the  legislature,  and  laws  that 
were  formerly  enacted  by  that  body  were  now  placed  in  the 
Constitution,  which  becomes  more  like  a  code  of  laws. 
Changes  were  made  in  both  the  central  and  local  govern- 
ments, which  gave  the  people  a  better  control  over  the  whole 
system.  New  constitutional  laws  recognized  the  fact  that  the 
state  must  give  greater  legal  rights  to  its  weaker  classes,  and 
provide  for  the  education  of  its  youth  and  the  care  of  its 
unfortunates. 

184.  The  State  Executive  and  Legislative  Branches.  — 
Most  of  the  eighteenth-century  governors  and  their  assist- 
ants were  chosen  by  legislatures.  Before  1830  the  practice 
had  become  universal  to  have  the  governor  elected  by  the 
people,  but  the  secretaries  of  state  and  other  administrative 
officials  were  still  chosen  as  before.  As  democracy  was 
naturally  opposed  to  the  appointive  system,  practically  all 
of  these  assistants  of  the  governor  in  time  came  to  be 
selected  by  the  people. 

In  the  composition  and  in  the  powers  of  the  legislatures, 
democracy  produced  significant  changes.  During  the  early 
part  of  the  century  the  members  of  the  upper  house  usually 
represented  counties  and  those  of  the  lower  towns,  but  in 
neither  house  was  the  apportionment  really  based  upon 
population.  After  many  experiments  and  hard  fought  con- 
tests between  the  cities  and  the  country,  they  began  to 
divide  the  states  into  districts  as  equal  as  possible  in  popu- 
lation, but  it  was  not  until  after  1850  that  the  states  finally 
abandoned  the  old  system  and  adopted  the  new  and  more 
democratic  one. 

Not  willing  to  trust  even  its  own  representatives,  democ- 
racy introduced  into  the  new  constitutions  provisions  which 
made  special  legislation  impossible  in  certain  enumerated 
cases,  and  forbade  all  legislation  on  certain  subjects.  But 
it  went  farther  and  compelled  the  legislatures  to  pass  laws 
and  appropriate  money  to  carry  out  certain  provisions  of 
the  Constitution.  This  decline  of  the  legislature  in  impor- 
tance gradually  led  to  the  adoption  of  biennial  sessions,  at 


Nationality  and  Democracy  149 

first  of  unlimited  duration,  but  later  restricted  to  ninety, 
sixty,  or  even  forty  days. 

185.  The  Judiciary.  —  The  judiciary  did  not  escape  the   Popular 
general  movement  which  made  appointive  offices  elective  ^'^'^'Jop  ^^^ 
and  shortened  the  terms  of  the  officials.     Before  1800  all  duced. 

of  the  states  appointed  all  judges,  state  or  local,  and  allowed  -^^^^^  j^ 
them  to  hold  office  during  good  behavior.    The  first  judges  Laior,  11, 
to  be  elected  by  the  people  were  the  justices  of  the  peace,  ^43-^45- 
who   were   either    township   or    county   officials,    formerly  Schouier, 
appointed   by  the  state  governor.     In   1802  Ohio  placed  Lj"'*^" 
their  election  in  the  hands  of  the  voters  in  the  district  over 
which  the  justice  had  jurisdiction.     The  rest  of  the  North-  ,-^/rf.,  11,458- 
west  did  the  same  as  it  became  settled ;  but  the  South  was  476- 
even   slower   than   the    East   in   adopting   this   plan.     Yet 
strangely  enough  it  was  Georgia  that  in  18 18  first  had  her 
state  judges  chosen  by  popular  vote,  and  the  South  was  the 
first  to  follow  her  example.      In  time  most  of  the  states, 
except  those  in  conservative  New  England  or  some  parts  of 
the  South,  changed  from  the  appointive  to  the  elective  sys- 
tem, with  tenure  varying  from  one  year  to  twelve.     The 
popular  demand  was  very  strong,  and  would  undoubtedly 
sooner  or  later  have  altered  the  term  of  the  federal  judges, 
but  for  the  inflexibility  of  the  national  constitution. 

The  results  of  these  changes  are  what  might  have  been  injury  to  the 
expected.  The  standard  of  ability  for  judges,  none  too  courts, 
high  before,  was  appreciably  lowered,  as  most  of  the  dignity 
of  the  office  was  gone,  and  as  legal  fitness  was  not  the  first 
requirement  of  candidates.  This  naturally  showed  itself  in 
the  application  of  the  law,  but  the  deteriorating  effect  was 
partially  counteracted  by  the  unusually  high  character  of  the 
bar,  which  has  at  all  times  in  our  history  called  forth  favor- 
able comments  fi-om  competent  observers.  The  evil  influ- 
ences of  brief  tenure  were  finally  realized,  and  since  1845 
most  of  the  states  that  had  gone  farthest  have  increased  the 
length  of  the  judges'  term. 

186.  Increased  State  Activity :  Finance.  —  It  is  a  common- 
place nowadays  that  democracies  are  extravagant.    Whatever 


ISO 


The  American  Federal  State 


Extrava- 
gance of 
early  democ- 
racy. 

Thorpe, 
ibid.,  11,429- 
446. 


Financial 
history  of 
Michigan 
(1835-1850). 

Cooley, 
Michigan, 
chaps.  XIII. 
XIV. 


Develop- 
ment of 
public  school 
systems. 

McMaster, 
United 
States,  V. 
chap.  XLIX. 


they  have  been  since,  the  first  ones  certainly  were.  The 
great  democratic  wave  of  the  thirties  happened  to  coincide 
with  a  period  of  the  wildest  speculation.  The  result  upon 
the  increased  expenditure  of  the  Western  states  may  be 
imagined.  Wild  cat  banks  were  created  by  the  score, 
millions  of  dollars  were  voted  for  improvements  in  a  wil- 
derness, and  state  aid  was  given  to  schemes  whose  only 
recommendation  was  that  they  promised  to  develop  the 
country. 

Suppose  we  take  the  case  of  Michigan.  In  1837  the  state 
replaced  the  old  method  of  creating  banks  through  special 
acts  by  a  more  truly  democratic  one  of  having  incorporation 
take  place  under  general  law.  But  in  the  troublous  times 
that  followed  only  the  most  careful  administration  of  such  a 
law  could  have  saved  the  state  from  disaster,  and  administra- 
tion is  not  even  now  democracy's  strong  point.  At  the  same 
session  (1837)  the  legislature  "authorized  the  governor  to 
borrow  five  millions  of  dollars  for  railroads,  canals,  and  other 
improvements."  Quite  an  investment  for  a  frontier  state 
with  a  population  barely  one  hundred  and  fifty  thousand  in 
days  when  official  salaries  of  ;^  1000  were  none  too  common. 
A  little  later  the  banks  were  allowed  to  suspend  specie  pay- 
ment, but  were  permitted  to  continue  issuing  paper  money. 
This  they  did  till  the  state  was  flooded  with  the  depreciated 
currency  of  forty-nine  banks.  The  effort  to  give  state  aid 
to  railroads  ended  in  much  the  same  way.  It  was  found 
almost  impossible  to  float  the  bonds,  and  after  a  series  of 
misfortunes  the  projected  lines  were  sold  at  a  serious  loss. 
In  1850  the  new  state  constitution  prohibited  subscription 
in  the  stock  of  any  company.  Democracy  had  learned 
some  hard  lessons  in  the  school  of  experience. 

187.  Education.  — The  same  causes  which  gave  the  people 
so  much  power  in  political  affairs  were  influential  in  the  ex- 
tension of  systems  of  free  education.  Not  only  did  people 
begin  to  realize  that  it  was  necessary  for  citizens  to  be  trained 
for  their  civic  duties,  but  they  felt  that  the  state  owed  every 
person  the  opportunity  of  a  good  education.     Under  the 


Nationality  and  Democracy 


151 


lead  of  Mann  and  Barnard,  New  England  built  upon  her  old 
foundation  of  belief  in  common  schools  a  far  more  perfect 
free  system  than  had  yet  existed.  In  the  West,  democracy 
insisted  upon  education  as  a  right.  As  all  of  these  states 
were  once  parts  of  the  public  domain,  each  had  an  educa- 
tional fund  of  one  section,  or  after  1848  of  two  sections,  in 
each  township.  This  greatly  lightened  the  burden  of  the 
local  school  taxes,  and  thus  gave  the  West  decided  advan- 
tages over  the  East.  But  it  did  more.  At  each  schoolhouse 
the  voters  of  the  township  gathered  to  discuss  school  matters 
and  fix  the  school  tax.  Soon  they  insisted  upon  looking  after 
other  subjects  of  local  interest,  and  around  the  schoolhouse 
there  grew  up  a  real  local  self-government  which  was  very 
favorable  to  the  further  spread  of  democracy. 

188.  Equalization  of  Rights.  —  It  was  inevitable  that 
sooner  or  later  class  privileges  should  disappear.  We  have 
already  noticed  that  religious  qualifications  for  the  fran- 
chise had  been  the  first  to  go,  and  that  property  was  not 
required  of  voters  to  any  extent.  Laws  of  inheritance  no 
longer  gave  the  eldest  son  a  special  share.  Imprisonment 
for  debt  had  been  gradually  aboHshed  after  1776,  and  was 
practically  completed  in  1840.  The  newer  states  were 
beginning  to  make  homesteads  exempt  from  seizure  by 
creditors.  Through  constitutional  provision  or  statute  some 
states  were  following  the  example  of  the  national  govern- 
ment which  in  1840  made  ten  hours  a  day's  labor  for  its 
employees,  but  most  changes  of  this  character  came  later, 
after  the  Civil  War.  In  some  cases,  the  constitutions 
expressly  stated  that  married  women  might  hold  property  in 
their  own  names,  and  gave  them  certain  other  specific  rights 
before  the  law  and  in  inheritance.  The  movement  in  favor 
of  equalization  was  almost  universal  though  less  pronounced 
in  the  older  and  more  conservative  sections. 

189.  Local  Government  in  Towns  and  Counties.  —  In 
local  government  the  changes  produced  by  democracy  made 
for  both  better  and  worse  government ;  better  in  that  the 
sphere  of  the  cities,  towns,  and  counties  was  so  much  more 


The  school 
district  and 
local  govern- 
ment. 

Bemis,  in 

y.  H.  u.  s., 

I.v. 

Abolition  of 
class  privi- 
leges. 

Cf.  Cleve- 
land, Democ- 
racy, 359- 
363.  379-385- 


Democratic 
changes. 

Cf.  Thorpe. 
Consfi  Hist., 
II.  469-475. 


152 


The  American  Federal  State 


Cf.  Cleve- 
land, Democ- 
racy, 222- 
227. 


Change  to 
popular  rule 
followed  by 
misgovern- 
ment. 

Fairlie,  in  A 
Municipal 
Programme, 
11-17. 


clearly  defined  and  greatly  enlarged ;  for  worse  because, 
especially  in  the  cities,  the  control  of  the  governmental 
machinery  fell  into  the  hands  of  those  least  fitted  to  run  it. 

During  colonial  times  all  of  the  counties  had  been  mere 
subdivisions  of  the  colonies  created  for  judicial  or  admin- 
istrative purposes.  Over  them  the  colonial  government  had 
absolute  control,  appointing  all  officials  and  changing  the 
boundaries  of  the  counties  or  the  location  of  the  county  seat 
at  will.  No  change  had  been  made  in  this  system  by  the 
older  states,  and  the  Western  ones  had  adopted  the  form  of 
local  government  in  use  in  the  states  from  which  its  inhab- 
itants had  emigrated,  modified  to  some  extent  by  different 
economic  conditions.  But  as  time  went  on  the  new  states 
began  to  introduce  changes  which  made  the  local  govern- 
ments much  more  popular  in  character.  The  election  of 
county  justices,  sheriffs,  and  other  officials  was  given  to  the 
people  of  the  counties.  The  jurisdiction  of  the  justices  was 
enlarged  even  when  they  were  township  officers,  and  county 
courts  with  still  greater  powers  were  often  permitted.  These 
changes  were  by  no  means  confined  to  the  West,  though 
more  fully  developed  in  that  section.  They  tended  to 
make  the  local  government  not  only  more  democratic,  but 
much  more  vital. 

190.  Municipal  Government. — Before  1820  cities  were 
so  few  and  small  that  little  attention  was  paid  to  them. 
There  was  a  complete  lack  of  uniformity  in  their  government, 
and  colonial  differences  and  customs  had  been  continued. 
However,  the  mayors  and  treasurers,  police  officials  and 
judges  were  commonly  appointed  by  the  state  governors. 
As  in  everything  else,  appointment  gave  place  to  election 
and  by  the  people  of  the  municipality.  This  gave  them 
almost  complete  self-government  with  very  little  interference 
from  the  legislatures.  It  was  a  very  excellent  appHcation  of 
democratic  principles,  but,  unfortunately,  the  cities  showed 
most  of  the  faults  with  few  of  the  excellencies  possible  in 
popular  rule.  In  them  the  "  spoils  "  system  was  brought  near- 
est perfection,  and  "  boss  "  rule  was  most  easily  developed. 


Nationality  and  Democracy  153 

This  demoralizing  state  of  affairs  was  probably  due  to  two 
things,  (i)  The  growth  of  the  cities  was  quite  rapid,  and 
a  large  part  of  the  new  population  was  foreign.  As  suffrage 
was  universal,  and  a  declared  intention  to  become  a  citizen 
often  gave  an  ignorant  immigrant  a  vote,  the  elections  were 
decided  by  an  element  easily  led  and  cornipted.  (2)  The 
rapid  growth  made  extensive  improvements  necessary. 
This  expenditure  acted  as  a  temptation  to  certain  of  the 
lower  classes  to  take  part  in  city  government,  and  as  the 
money  was  expended  by  these  persons,  it  tended  to  increase 
the  evils  already  existing.  So  democracy  in  the  cities  came 
near  being  mob  rule,  till  at  length  the  cities  appealed  to  the 
state  legislatures  for  help.  But  legislative  interference  could 
not  undo  what  was  already  accomplished,  and  left  the  cities 
with  two  masters  instead  of  one. 

The  beginnings  of  reaction  against  the  extreme  results  of  Reaction 
democracy  appeared  not  only  in  the  cities,  but  all  over  the  gf^^e^ e 
country  before  i860.     There  was  already  a  marked  tendency  forms  of 
to  lengthen  terms  of  office,  to  grant  the  franchise  less  freely,  ^^°^^^^ 
and  by  checks  and  devices  to  protect  the  people  from  them- 
selves. 

QUESTIONS  AND   REFERENCES 

The  New  Nationality  (§§  162-169) 

a.  On  the  Supreme  Court  consult  Johnston's  article  in  Lalor,  on  the 
'Judiciary';  Magruder's  Marshall,  ch&^.  X;  Willoughby's  Supreme 
Court;  and  Channing  and  Hart's  Guide,  §  175.  The  texts  of  the 
decisions  are  given  in  Thayer's  Cases  in  Constitutional  Law.  Con- 
sult table  of  cases  (p.  xi)  under  those  mentioned,  and  Fletcher  v.  Peck, 
Cohens  v.  Virginia,  Gibbons  v.  Ogden, 

1.  In  what  ways  did  the  War  of  181 2  affect  nationality  through  («) 
influencing  powers  of  the  national  government,  {b)  making  us  eco- 
nomically independent,  and  {c)  unifying  public  sentiment  ? 

2.  Was  the  tariff  of  1816  intended  to  be  temporary  or  permanent  ? 
Was  it  possible  to  gain  the  objects  desired  by  a  temporary  tariff  ? 

3.  Why  was  the  feeling  toward  a  United  States  bank  different  in 
181 1  and  in  1816  ?  Was  the  bank  chiefly  valuable  as  a  governmental 
or  a  nationalizing  institution  ? 


154  ^-^'^  American  Federal  State 

4.  What  justification  do  you  find  in  the  Constitution  for  internal 
improvements  ?  Have  we  internal  improvements  at  the  present  ?  If 
so,  what  ? 

5.  Was  slavery  principally  a  political  or  an  economic  issue  ?  Was 
slavery  more  clearly  allied  to  state  sovereignty,  to  sectionalism,  or  to 
nationalism  ? 

6.  Compare  the  advantages  won  by  each  section  in  the  final  com- 
promise. Which  side  won  most  ?  What  were  the  constitutional 
results  of  the  compromises  ?  the  political  results  ? 

7.  Just  how  did  the  decisions  of  the  Supreme  Court  strengthen 
nationality  ?  Was  the  court  sufficiently  conservative  ?  Would  its 
permanent  influence  have  been  greater  by  following  a  different  pol- 
icy ?     If  so,  what  policy  ? 

8.  What  was  the  purpose  of  the  Holy  Alliance  ?  What  had  been 
done  by  the  Alliance  in  Europe  ?  What  was  the  attitude  of  England 
toward  the  Alliance  before  1822  ?  after  1822  ?  What  was  the  relation 
of  the  Alliance  and  Russia  in  Alaska  to  the  Monroe  Doctrine  ? 


Political  Reorganization  on  a  Democratic  Basis  (§§  170-175) 

1.  What  part  has  the  frontier  played  in  our  history  ? 

2.  Can  you  find  any  good  reasons  for  limiting  the  franchise  to  men 
of  property  ?  State  advantages  and  the  disadvantages  of  the  union  of 
Church  and  State. 

3.  Did  the  Missouri  question  have  anything  special  to  do  with  the 
reaction  in  favor  of  particularism  after  1820  ?  Prove  your  answer. 
Did  it  affect  the  new  organization  of  parties  ?  Compare  the  Whigs 
with  the  Federalists  as  to  constitutional  views,  policies,  social  opinions, 
and  section  from  which  strength  was  derived. 

4.  Could  political  class  rule  have  been  abolished  except  through  the 
convention  and  "  machine  "  system  ?  Were  the  latter  to  be  preferred 
to  the  former  ?     Give  reasons  for  your  answer. 

5.  With  the  presidents  of  most  influence,  what  have  been  the  sources 
of  that  influence  ?  To  what  extent  was  it  due  to  their  constitutional 
powers  (and  to  which  ones)  ?  to  the  feelings  of  the  people  ?  to  party 
leadership?  etc. 

6.  Did  the  "  spoils  "  system  get  the  strongest  hold  on  the  national,  the 
sfete,  or  the  local  government  ?     State  its  advantages ;  its  disadvantages. 


Questions  affecting  Nationality  (§§  176-181) 

a.  Macdonald,  in  his  Documents,  gives  extracts  from  Webster's  and 
Hayne's  speeches  on   Foot's   Resolutions.      Benton's   Thirty   Years? 


Nationality  a7id  Democracy  155 

View  gives  a  good  brief  record  of  the  debate.     Criticisms   of  the 
speeches  are  given  in  Lodge's  Webster. 

b.  Consult  on  nullification  by  South  Carolina  the  following: 
Schouler,  IV,  85-1 11 ;  Sumner's  ya<:^5t»«,  chap.  X;  Von  Hoist,  Con- 
stitutional History^  I,  459-505;  Burgess,  Middle  Period,  220-241; 
Yo^f^t  Nullification  and  5^f ««<>«,  chap.  VI ;  YioMsXon,  Nullification 
in  South  Carolina. 

1.  Can  the  judiciary  enforce  its  decree  without  the  help  of  the 
executive  ?  how  ?    Why  did  it  not  do  that  in  the  Cherokee  Case  ? 

2.  Compare  the  Nullification  Act  of  South  Carolina  with  Jackson's 
appeal.  Which  gives  the  truer  view  of  the  Union  ?  the  correct 
interpretation  of  the  tariff  ?  Would  it  have  been  better  to  have 
fought  out  the  contest  at  that  time  ?  What  was  the  effect  of  the 
compromise  ? 

3.  What  is  the  difference  in  principle  between  the  tariffs  of  1816, 
1828,  and  1832  ?  in  details  ? 

4.  What  was  the  influence  of  the  new  states  between  1830  and  i860 
as  shown  by  the  number  of  presidents  they  furnished,  measures  pro- 
posed and  carried  by  them  in  Congress,  and  state  constitutional  changes 
adopted  first  by  them,  and  then  accepted  elsewhere  ? 

5.  Had  the  United  States  Bank  failed  to  establish  a  "  uniform  and 
sound  currency,"  as  Jackson  claimed  ?  Did  the  election  of  1832  jus- 
tify Jackson's  remark  that  the  bank  "  might  make  us  tremble  for  the 
purity  of  our  elections  in  times  of  peace  "  ? 

6.  Compare  the  race  elements  of  immigrants  before  1850;  between 
1850  and  i860.  Which  predominated  ?  Where  did  most  of  the  Eng- 
lish settle  ?  the  Germans  ?  the  Irish  ? 


Phases  of  Later  Democratic  Development  (§§  182-190) 

a.  For  the  requirements  of  voters  and  office-holders  compare  the 
tables  in  Thorpe,  Constitutional  History,  II,  408-412,  (state  senators 
and  representatives) ;  423,  424,  (governors) ;  476-479,  (electors) ; 
consult  Appendix  F  and  Bradford's  Lessons  of  Popular  Government^ 
chap.  I. 

1.  To  what  extent  was  the  appointive  system  retained  after  1830  ? 
Have  the  liberties  of  the  people  ever  been  threatened  by  long  terms  of 
judges  ? 

2.  If  both  houses  of  the  legislature  were  on  the  same  basis,  why 
was  it  best  to  retain  both  ?  Name  all  the  checks  you  can  which  were 
placed  by  the  people  upon  their  representatives. 

3.  Did  internal  improvements  belong  rather  to  the  states  or  the 


156  The  American  Federal  State 

nation  ?  What  investments  in  internal  improvements  by  the  states 
have  proved  successful  ?  What  ones  failures  ?  Explain  why,  if  pos- 
sible, in  all  cases. 

4.  To  what  extent  did  democracy  before  i860  produce  equality  in 
political  and  in  social  matters  ?  in  economic  relations  ?  in  other 
ways?  Did  democracy  owe  more  to  equality,  or  equality  more  to 
democracy  ? 


CHAPTER   VIII 

NATIONALITY  AND   SLAVERY   (i  845-1 877) 
General  References 

Mace,  Method  in  History,  206-254.     To  1865. 

Johnston,  American  Folitics,  chaps.  XVI-XXIII. 

Channing,  Student's  History,  443-573. 

ViWson,  Division  and  Reunion,  116-287.     Excellent. 

Burgess,  Middle  Period,  39-60,  242-277,  289-474.  The  most  valuable 
book  to  1858.  Burgess,  Civil  War  and  Reconstruction.  (In 
preparation.) 

Curtis,  Constitutional  History,  II,  191-440. 

Dunning,  Civil  War  and  Reconstruction.  By  far  the  best  book  yet 
published. 

Powell,  Nullification  and  Secession  in  the  United  States. 

Macdonald,  Select  Documents  (1776-1865),  343-455. 

Foster,  Commentaries  on  the  Constitution,  1 10-268. 

Lamed,  under  the  United  States. 

American  Orations,  III,  IV. 

McPherson,  Political  History  of  Reconstruction.  Indispensable  for 
reference. 

Hard,  Theory  of  Our  National  Existence. 

Schouler,  United  States,  IV-VI.     To  1865. 

Rhodes,  United  States.     4  volumes.     To  1865. 

Nicholay  and  Hay,  Abraham  Lincoln.     10  volumes, 

Davis,  Rise  and  Fall  of  the  Confederate  Government.  2  volumes. 
Personal  accounts  of  political  events, 

Stephens,  Constitutional  View  of  the  War  between  the  States.  2  vol- 
umes. 

McCuUoch,  Men  and  Measures  of  Half  a  Century. 

Blaine,  Twenty  Years  in  Congress.     2  volumes. 

Cox,  Three  Decades  of  Federal  Legislation. 

Sherman,  Recollections  of  Forty  Years.     Volume  I. 

Johnston,  in  Lalor,  under  Principal  Topics. 

Among  the  numerous  biographies  may  be  mentioned :  Morse's  Lin- 

157 


158 


The  American  Federal  State 


Conditions 
in  the  South 
favor  slavery. 


Slavery 
absorbs  the 
life  of  the 
South. 


Slavery  as 
a  state 
institution. 


«/«,  2  volumes;  Brooks's  ZjW^/w ;  McLaughlin's  Caw ;  Lathrop's 
Seward;  Hart's  C*flj(r/  McCall'sS/^/^wj/  Lives  of  Clay,  Webster, 
and  Calhoun,  as  in  chap.  VII. 

191.  Slavery  and  the  South.  —  The  last  period  of  the 
national  era  before  1877  is  concerned  principally  with 
questions  arising  out  of  slavery.  This  system,  which  had 
once  been  almost  universal  in  this  country,  had  gradually 
been  superseded  at  the  North  by  free  labor.  The  reasons 
for  this  are  typographical,  economic,  and  social.  Such  was 
the  character  of  soil  and  climate  that  the  occupations  preva- 
lent in  the  Northern  states  could  not  use  slave  labor  to 
advantage.  The  humanitarian  sentiment  which  was  the 
direct  outgrowth  of  the  revolutionary  ideas  concerning  the 
rights  of  man  succeeded  in  abolishing  what  little  slavery 
prevailed.  At  the  South,  on  the  contrary,  emancipation 
had  made  little  progress  before  the  invention  of  the  cotton 
gin  (1793),  and  after  that  time  the  demand  for  slave  labor 
was  great  and  increasing.  For  these  reasons,  slavery  was 
almost  of  necessity  anti-national,  as  it  could  not  hope  to 
regain  the  North,  when  a  world-wide  movement  was  abol- 
ishing slavery  everywhere  else  among  civilized  people.  It 
was  therefore  sectional,  and  it  gave  to  the  section  that  had 
nourished  it  a  peculiar  character.  It  did  more  than  domi- 
nate the  Southern  states:  it  had  absorbed  the  life  of  the 
South.  We  shall  see  later  what  the  effects  of  that  absorp- 
tion were;  but  we  find  in  all  matters  of  a  political  nature 
that  the  South  more  and  more  came  to  look  at  everything 
from  the  standpoint  of  slavery.  All  other  interests  were 
subordinated  to  this  one  till,  in  politics,  the  effect  of  any 
measure  upon  slavery  was  the  first  and  the  last  thing 
considered  by  Southern  statesmen. 

192.  Slavery  in  the  States  before  1845.  —  It  had  always 
been  a  settled  question  that  in  the  parts  of  the  Union  where 
slavery  existed,  slavery  was  to  be  left  entirely  to  the  states. 
In  the  discussions  of  the  convention  of  1787,  it  was  never 
slavery  in  United  States  territory  that  caused  dispute.  The 
three-fifths  compromise,  the  provisions  for  fugitive  slaves, 


Nationality  and  Slavery  159 


and  the  regulation  regarding  the  slave  trade  were  not,  in  Wilson, 
a  true  sense,  national  questions,  i.e.  they  dealt  rather  with   ^^"^°"  "'"' 
slavery  as  a  state  institution,  and  sought  to  place  it  as  far  chap,  v.' 
as  possible  from  the  control  of  the  central  government.    In   Burgess 
regard  to  them  Professor  Burgess  says:  "These  were  most  Middle 
momentous    provisions.      They   secured    slave    property,      ''^^ ' 
increased  slave  property,  and  made  slavery  a  vast  political 
power  in  the  hands  of  the  slave   masters.     There  is  no   cmst'i  Hist. 
doubt  that  the  clock  of  the  ages  was  turned  back  full  half   273-339. 
a  century  by  the  constitution  of  1787."    The  influence  of 
these   arrangements   made   by  the   convention,  combined 
with  the  increased  value  of  slave  labor  due  to  the  cotton 
gin,  made  slavery  the  most  permanent  institution  of  the 
South.     As  a  rule,  state  laws  regarding  the  treatment  of 
slaves  became  more  lenient;  but  emancipation,  which  was 
practically  completed  at  the  North  by  1800,  never  received 
much  encouragement.      What  little   feeling   in  favor  of 
emancipation  existed  before  1830  in  slave  states,  disap- 
peared as  individuals  and  classes  at  the  North  began  agita- 
tion for  the  freedom  of  the  slaves.     On  the  other  hand,  as 
the  antislavery  sentiment  spread  in  the  ncJn-slaveholding 
section,  the  free  states  enacted  laws  protesting  against  the 
enforcement  of  the  fugitive  slave  act  of  1793,  now  all  but 
a  dead  letter.     All  of  these  things  tended  to  widen  the  gulf 
between  the  North  and  the  South. 

193.   Slavery  in  National  Territory. — Before  1845  slavery  Northwest 
in  the  territories  had  been  regulated  entirely  by  Congress.   ^^^  South- 
As  early  as  1784  Jefferson  had  sought  to  have  all  of  our  tories. 
Western  lands  declared  free;  tut  when  the  proposed  Ordi-  ^^^  Yio\sx 
nance  of  1784  became  the  Ordinance  of  1787  (§  100),  it  iHd.,  273- 
was  restricted  to  the  territory  northwest  of  the  Ohio.     To  ^°^' 
give  it  validity  this  ordinance  was  reenacted  by  the  first 
Congress  under  the   Constitution,   and  reaffirmed  twenty 
years  later  when  that  body  was  petitioned  to  rescind  it. 
The  same  Congress  (1790)  entered  into  a  compact  with 
some  of  the  Southern  states  not  to  exclude  slavery  in  the 
territories  south  of  Kentucky.     When  we  acquired  Louisi- 


i6o 


Tlie  American  Federal  State 


Louisiana. 

Burgess, 
ibid.,  54-58. 


District  of 
Columbia. 

Burgess, 
ibid.,  251- 
264. 


Slavery 
drives  the 
sections 
apart. 

Mace, 

Methods, 
216-219. 


ana,  we  promised  to  recognize  the  right  of  the  inhabitants 
to  their  property  in  slaves.  As  no  further  action  was  taken 
by  Congress,  that  whole  territory  was  open  to  slavery  before 
the  institution  was,  in  1820,  "forever  prohibited"  above 
36°  30'.  This  compromise  was  really  violated  when  a  strip 
covering  over  a  thousand  square  miles  was  added  to 
Missouri  in  1837. 

The  District  of  Columbia  had  recognized  slavery  from 
the  first.  No  effort  was  made  to  change  this  state  of  affairs 
till,  during  the  thirties,  abolition  societies  had  petitioned 
Congress  to  abolish  both  the  slave  trade  and  slavery  in  the 
district.  No  attention  was  paid  to  these  at  first,  but  the 
House  of  Representatives  became  so  annoyed  that  they  fool- 
ishly denied  the  right  of  a  petitioner  to  be  heard.  Instead 
of  silencing  agitation,  this  gave  the  abolitionists  legal 
ground  to  stand  on. 

194.  Increase  of  Sectionalism.  —  While  there  had  been  a 
growing  antagonism  between  the  North  and  the  South  over 
the  slavery  issue,  permanent  sectionalization  did  not  really 
begin  until  after  1830.  The  Missouri  difficulty  had  caused 
a  fierce  but  brief  conflict,  chiefly  significant  as  showing 
the  inevitableness  of  the  contest  between  freedom  and 
slavery,  which  it  could  not  decide,  but  did  postpone. 
With  the  new  antislavery  agitation,  however,  the  case  was 
different.  The  South  had  already  come  to  identify  itself 
pretty  closely  with  slavery,  and  viewed  all  suggestions  of 
emancipation  as  a  serious  danger  to  itself.  It  proceeded 
at  once  to  check  everything  that  tended  in  any  way  to 
hinder  the  growth  of  slavery  and  began  to  look  about  for 
new  fields  in  which  to  develop  further.  The  opportunity 
was  at  hand,  for  the  new  state  of  Texas  had  established  its 
independence  of  Mexico,  had  made  slavery  one  of  its  insti- 
tutions, and  was  anxious  to  enter  the  Union.  The  thought 
of  annexing  territory  that  might  give  to  slavery  four  new 
states  did  much  to  strengthen  the  antislavery  feeling  at 
the  North,  and  created  a  widespread  opposition  to  the 
Mexican  War,  whose  principal  result  would  naturally  be  to 


Nationality  and  Slavery  i6i 

increase  the  power  of  a  relic  of  past  barbarism.  We  cannot 
say  that  either  the  North  or  the  South  was  really  to  blame 
for  this  increase  of  sectionalism.  It  was  nothing  more 
than  an  evidence  of  the  fact  that  no  nation  can  exist  with 
two  radically  different  and  antagonistic  economic  institu- 
tions side  by  side;  that  the  Union  could  not  "permanently 
endure,  half  slave  and  half  free." 

195.   The  Compromise  of   1850. — As  a   result  of  our  increase  of 

treaties  with   England   and   Mexico,   in    1846  and  1848,   territory 

1  •       1     1        •  .  11  (1846-1848). 

respectively,  our  national   domain  was   increased  by  over 

a  million  square  miles,  extending  from  the  ridges  of  the 
Rocky  Mountains  to  the  Pacific,  and  covering  sixteen 
degrees  of  latitude.  The  northern  quarter  of  this  region 
was,  in  1848,  organized  as  Oregon  territory,  slavery  being 
excluded. 

That  same  year  the  discovery  of  gold  in  California  drew  Features  of 
to  the  neighborhood  of  the  Golden  Gate  a  population  of  *^^  compro- 
over  one  hundred  thousand  within  a  short  period.     Natu- 
rally, few  of  these  were  slave  owners;  and  when,  therefore,    tt  o^Tqs 
California  applied  for  admission  to  the  Union,  it  was  as  a 

_,      ,      ,       ,  ,     1         ,  .  Wilson, 

free  state.     To  the  leaders  of  the  slavery  extension  move-  Division  and 

ment  this  was  a  serious  blow,  as  California  touched  the  i^'eunion, 

southern  boundary  of  the  United  States.     Under  the  cir-  **  ^~  ^' 

cumstances,  they  did  the  best  they  could,  and  agreed,  in  ^^"^'°"' '" 

the  Compromise  of  1850,  to  admit  California,  and  abolish  552-553. 

the  slave  trade  in  the  District  of  Columbia,  if  all  the  rest  gy     „ 

of  the  territory  acquired  from  Mexico  should  be  allowed  to  Middle  Peri- 

choose  slavery  as  the  parts  became  states.     By  the  same  °^'  345-364- 

compromise.  Congress  purchased  the  claim  of  Texas,  which  Macdonaid, 

had  refused  to  be  divided,  to  a  large  area  west  of  its  pres-  ^y^"ZT.  '' 

ent  boundaries,  and  passed  a  fugitive  slave  act  much  more 

drastic  in  its  methods  than  that  of  1793. 

The  enforcement  of  the  fugitive  slave  act  did  more  to  Effect  of  the 

make  the  North  antislavery  than  all  other  political  meas-   "^*  fugitive 

•'  '^  slave  law. 

ures  combined.     The  sight  of  negroes,  denied  the  protec- 
tion of  Northern  state  laws  or  of  an  opportunity  to  prove  i^j^VeL^g^ 
their  freedom,  quickened  a  sense  of  the  injustice  of  human 


1 62 


The  American  Federal  State 


Missouri 

Compromise 

repealed. 

Johnston,  in 
Lalor,  II. 
667-670. 

Macdonald, 
Documents, 
395-405. 

Burgess, 
Middle 
Period,  chap. 
XIX. 


Effect  of  the 
repeal. 


The  struggle 
for  Kansas. 

Wilson, 
Division  and 
Reunion, 


bondage,  and  seemed  proof  that  the  South  did  not  intend 
to  stop  at  any  means  of  fostering  slavery.  This  feeling 
loosened  the  ties  of  affection  for  the  Whig  party,  whose 
chief  strength  lay  in  the  free  states,  preparing  the  way  for 
a  new  reorganization  of  political  parties  (§  537). 

196.  The  Elansas-Nebraska  Bill  (1854). — Just  at  this 
juncture,  democracy  came  forward  with  what  it  believed 
to  be  the  solution  of  the  slavery  question.  It  said,  let  the 
choice  of  slavery  or  no-slavery  be  left  to  the  new  states  on 
entrance  to  the  Union.  This  will  be  in  accordance  with 
the  principles  of  self-government  and  with  natural  law,  as 
the  system  best  fitted  for  the  conditions  will  survive.  This 
certainly  seemed  reasonable;  but,  in  order  to  make  popu- 
lar sovereignty  possible,  the  Kansas-Nebraska  Bill,  in  which 
Douglas  embodied  these  ideas,  found  it  necessary  to  set 
aside  the  Missouri  Compromise.  To  a  large  part  of  the 
North  this  compromise  was  as  sacred  as  the  Constitution 
itself,  and  popular  sovereignty  was  no  justification  for  its 
repeal.  Slavery  seemed  to  have  invaded  their  rights,  and 
the  supposed  invasion  produced  a  unanimity  of  antislavery 
sentiment  almost  as  great  as  that  for  slavery  at  the  South. 
The  Whig  party,  which  had  pursued  a  temporizing  policy, 
gave  way  to  new  antislavery  organizations,  the  larger  of 
which  grew  into  the  Republican  party.  The  Democratic 
party,  always  strong  at  the  South,  was,  at  the  same  time, 
gradually  transformed  into  a  pro-slavery  body.  The  elec- 
tion of  1856  shows  how  much  wider  the  gulf  between  the 
sections  had  become.  In  spite  of  the  efforts  of  politicians, 
platforms  dealt  with  sectional  questions,  and  the  candidates 
were  sectional  in  their  thought,  if  not  in  their  residence. 

The  application  of  the  ideas  of  popular  sovereignty  to 
the  case  of  Kansas  was  extremely  difficult  because  of  civil 
disorder,  but  the  free  state  men  had  the  advantages  of  supe- 
rior organization  and  the  greater  mobility  of  free  labor. 
The  contest  was  really  one-sided,  and  proved  to  the  South 
that  slavery  could  not  compete  with  free  labor  on  equal 
terms. 


Nationality  and  Slavery  163 

197.   The  Dred  Scott  Decision.  —  The  final  attempt  of  The  Su- 
slavery  to  settle  the  great  difficulty  to  its  own  satisfaction  ^ecides^""^ 
was  made  in  1857,  when  the  Supreme  Court  rendered  its  favor  of 
decision  in  the  Dred  Scott  Case.     Dred  Scott  was  a  negro  slavery, 
slave  who  had  been  carried  from  Missouri  to  Wisconsin  Johnston,  in 
territory  (afterward  Minnesota),  and  who,  after  his  return   -  j^' '' 
to  Missouri,  had  sued  for  his  freedom.     The  court  decided 
that  although  Dred  Scott  had  been  taken  to  free  soil,  on  ,^,^  ^j,' 
his  return  to  Missouri  his  status  was  determined  by  Mis-  XXI. 
souri  law.     But  Chief  Justice  Taney  and  some  of  his  asso-  Macdonaid, 
ciates  went  further.     In  an  elaborate  argument  the  chief  documents, 
justice  gave  this  opinion:  (i)  Dred  Scott  is  not  a  citizen 
and  cannot  become  so.     (2)  The  central  government  has 
no  right  to  acquire  or  govern  territory  except  as  the  agent 
of  the  states.     If  it  is  the  agent  of  all  the  states,  it  does 
not  possess  unlimited  power  over  the  territory,  but  is  limited 
by  the  Constitution  to  protect  personal  and  property  rights. 
He  held  that  the  right  of  property  in  slaves  was  one  of 
which  no  person  could  be  deprived  "  without  due  process 
of  law";  that,  consequently,  "the  act  of  Congress  [Mis- 
souri's compromise]  which  prohibited  a  citizen  from  hold- 
ing and  owning  property  of  this  kind  in  the  territory  of  the 
United  States  north  of  the  line  therein  mentioned  [36°  30'], 
is  not  warranted  by  the  Constitution,  and  is  therefore  void." 
As  this  view  was  indorsed  by  the  majority  of  the  justices 
in  separate  opinions,  it  was  accepted  as  the  decision  of  the 
court  that  slavery  could  not  be  prohibited  by  Congress  in 
any  of  the  national  territory,  and  that  the  exclusion  or  non- 
exclusion  of  slavery  must  be  decided  for  each  state  by  itself 
on  its  entrance  to  the  Union. 

This  was  essentially  a  new  doctrine,  and  came  as  near  to  The  contest 
declaring  slavery  national  as  was  possible,  on  the  basis  of  °^"  slavery 

°  •'  *^  becomes  in- 

"  State  sovereignty."     But  it  was  the  view  held  by  a  decided  evitabie. 
minority  of  the  nation.     The  majority  not  only  refused  to 
accept  it,  but  continued  to  gain  greatly  in  numbers  and  in 
determination.     The  court  had  done  just  what  it  wished  to 
avoid.    The  chasm  between  the  sections  had  been  widened, 


164 


The  American  Federal  State 


Election  of 
i860  leads  to 
secession. 

Channing, 
hh  326-331- 

Johnston,  in 
Lalor,  III, 
693-702. 


Comparative 
equality  of 
the  sections 
(1776). 


the  irrepressibility  of  the  conflict  between  the  institution 
of  slavery  and  the  system  of  free  labor  was  becoming  more 
and  more  apparent.  One  step  more,  and  all  must  see  that 
the  Union  must  become  all  free  or  all  slave. 

198.  Secession. — The  election  of  i860  was  the  begin- 
ning of  the  end.  Slavery  had  rent  asunder  all  of  the  great 
national  churches  some  time  before,  it  had  caused  a  split 
in  the  Whig  party,  and,  finally,  in  i860,  separated  the 
Democratic  party  into  a  northern  and  a  southern  wing.  The 
loyalty  to  the  nation  and  the  compromising  of  the  poli- 
ticians had  alone  been  able  to  sustain  the  Union  intact. 
With  the  election  of  Lincoln,  on  a  platform  favoring  the 
total  exclusion  of  slavery  from  the  territories,  the  South 
gave  up  hope  of  future  success  except  by  secession.  South 
Carolina  immediately  called  a  constitutional  convention, 
which,  on  the  20th  of  December,  i860,  repealed  the  act  of 
1788  ratifying  the  Constitution  of  the  United  States.  The 
reasons  given  for  this  action  were  set  forth  as  follows :  the 
history  of  the  formation  of  the  Union  from  1776  to  1790 
was  given  to  prove  the  reality  of  state  sovereignty  and  the 
compact  theory  of  the  Constitution.  This  compact  was 
said  to  be  violated  in  two  ways:  first  by  the  "personal  lib- 
erty "  laws  of  certain  enumerated  states  at  the  North,  which 
had  nullified  the  fugitive  slave  acts;  and  second  by  the 
threatened  danger  to  slavery  as  a  state  institution  in  the 
election  of  Lincoln.  The  Gulf  states  immediately  followed 
South  Carolina's  example,  for  the  reason  that  they  believed 
better  terms  could  be  made  with  the  North  if  they  were  out 
of  the  Union.  President  Buchanan  thought  secession  ille- 
gal, but  denied  that  he  had  the  right  to  coerce  a  state,  so 
nothing  was  done.  Compromise  failed,  hostilities  com- 
menced, the  central  Southern  states  threw  in  their  lot  with 
the  South,  and  the  deadly  struggle  began. 

199.  The  South  and  the  North  in  1776. — The  reasons 
for  the  final  result  can  perhaps  best  be  shown  by 
comparing  the  North  and  the  South  in  1776  and  in 
1861. 


Nationality  and  Slavery  165 

As  has  already  been  stated,  slavery  had  absorbed  the 
life  of  the  South.  The  significance  of  this  may  not  be  at 
once  apparent.  When  the  colonies  had  broken  away  from 
Great  Britain,  the  states  in  which  slavery  was  prominent 
were  at  least  the  equals  in  most  respects  of  the  others.  All 
were  devoted  almost  entirely  to  the  pursuit  of  agriculture. 
What  little  commerce  there  was  benefited  the  South  as 
much  as  the  North,  because  the  agricultural  products  of  the 
former  were  better  suited  to  exportation.  In  the  carrying 
trade,  in  her  local  self-government,  and  in  some  kinds  of 
manufacture.  New  England  had  the  advantage  of  the  other 
sections;  but  to  counterbalance  these  the  South  had  her 
large  class  of  slaveholders,  whose  training  and  leisure 
especially  fitted  them  to  be  the  leaders  in  all  national 
movements. 

300.   The    South    (1776-1861). — Politically,    industri-  slavery  inter- 
ally,  and  socially  the  world  had  made  great  strides  between  ^^''^^  "'*'' 

,„,  _,       __.,^  .,  ,,.      development 

1776  and  i860.     The  United  States  was  in  the  van  of  this  of  the  South, 
movement.      But  the  character  of  the  development  had        . 

been  very  different  at  the  North  and  at  the  South.     Slavery  industrial 

had  gained  a  stronger  hold  in  the  Southern  states,  so  the  ^.volution, 

,     ,  .  ,  ii-n^i  chap.  XII. 

system  of  class  separation  was  no  less  marked  in  i860  than 
in  1776.  Democracy,  with  its  ideal  of  equality,  was  the  ^°"/y//,^^ 
important  product  of  the  civilized  world  during  the  first  1,340-356, 
half  of  this  century;  but  what  place  could  democracy  occupy 
in  a  section  controlled  by  slavery  ?  The  South  had  felt  the 
effects  of  the  movement,  but  had  had  little  part  in  it.  Her 
politics  were  dominated  in  i860,  as  they  were  in  1776,  by 
the  slaveholding  landowners.  This  made  adult  manhood 
suffrage  less  common  and  a  far  less  vital  force  than  at  the 
North.  In  her  political  method  as  well,  the  South  had 
retained  eighteenth-century  ways.  For  example,  the  South 
clung  to  the  older  theory  of  state  sovereignty,  and  that  the 
Union  was  a  Staatenbund.  As  late  as  i860  South  Carolina 
had  chosen  her  presidential  electors  through  the  state  legis- 
lature, and  only  one  of  the  ordinances  of  secession  was 
submitted  to  the  voters  for  ratification. 


i66 


The  American  Federal  State 


Influence  of 
slavery  on 
industry. 


Progress  in 
the  North 
(1776-1861). 

Hart,  Essays 
on  Gov't, 
268-278, 
392-298. 


If  slavery  had  exerted  an  unfavorable  influence  on  society 
and  politics  alone,  the  South  might  still  have  hoped  for 
success.  But  it  had  been  like  a  huge  octopus,  which  had 
seized  upon  everything,  and  from  that  had  crushed  all  life. 
It  had  prevented  popular  education,  hindered  the  extension 
of  every  means  of  communication,  and,  more  than  all  else, 
had  made  the  development  of  material  resources  impos- 
sible. The  South  was  not  less  rich  in  soil  or  mineral 
resources  than  the  North,  but  slave  labor  could  be  used 
only  for  the  coarsest  kind  of  work;  yet,  at  the  same  time, 
competition  by  free  labor  was  not  possible.  On  this 
account  agriculture  was  the  only  occupation  in  1861,  as  in 
1776;  and  this  agriculture  meant  cultivation  on  a  large 
scale,  with  crude  and  wasteful  methods.  Manufacture, 
which  required  skilled  labor,  was  out  of  the  question,  as 
the  slave  could  not  be  depended  upon,  and  free  labor 
shunned  the  South.  Internal  trade  under  the  conditions 
was  very  limited.  The  case  of  the  South  was  what  scien- 
tists would  call  one  of  "arrested  development,"  and  its 
sole  cause  was  slavery. 

201.  Advantages  of  the  North  over  the  South.  —  How 
different  was  the  situation  at  the  North.  Here  change  had 
been  rapid  and  increasing.  Democracy  had  played  havoc 
with  the  old  social  limitations  and  political  restrictions. 
In  every  line  of  activity  progress  had  been  made  from  the 
simple  to  the  complex.  Free  labor  filled  all  things  with 
life  and  vigor.  There  was  every  possible  inducement  for 
inventive  genius,  personal  industry,  and  industrial  manage- 
ment. This  was  productive  of  a  spirit  scorned  by  the  South 
because  of  its  petty  commercial  character,  which  had  the 
marked  disadvantage  of  withdrawing  the  ablest  minds  from 
the  political  arena. 

All  of  these  conditions  were  attractive  to  a  numerous  class 
of  Europeans,  to  whom  the  reactionist  regime  after  18 15 
left  no  hope  at  home.  They  flocked  to  our  shores  in 
thousands.  Before  1861  five  million  had  come,  about 
one-half  during  the  previous  ten  years.      Other  things 


Nationality  and  Slavery  167 

being  equal,  they  would  have  turned  the  scales  in  favor  of 
nationality  and  freedom.  The  way  the  North  had  out- 
stripped the  South  is  apparent  from  a  comparison  of  the 
two  sections. 

In  1790  the  population  was  the  same,  and  the  free  states  had  five    Population 
more  congressmen.     By  1810  the  North  had  300,000  more  people,    and  con- 
while  its  majority  in  the  House  was  twenty-five.     In  1840  the  popula-    gressmen 
tion  of  the  South  was  seven  and  one-third  millions,  that  of  the  North 
nine  and  three-fourths.     In  the  House  the  South  had  100  represen- 
tatives, the  North,  142.     By  i860  the  North  had  seven  millions  more 
people  and  two-thirds  of  the  members  of  the  lower  house. 

When  the  first  census  was  taken  in  1 790,  we  find  the  sections  have    Comparison 
almost  exactly  the  same  area,  about  400,000  square  miles,  and  a  differ-    of  the 
ence  of  but  seven  thousand  in  population.    The  exports  were  a  trifle   sections 
over  eight  and  a  half  millions  at  the  South,  and  about  a  hundred         ^^* 
thousand  less  at  the  North. 

In  i860  the  area  of  states  allowing  slavery  was  875,743  square  miles  Comparison 
to  768,255  square  miles  for  those  that  were  free;  but  the  white  popu-  in  i860, 
lation  of  the  North  was  19,000,000,  and  of  the  South  and  the  border 
states  less  than  8,000,000.  The  exports  of  the  South  were  $230,000,000  to 
$105,000,000  for  the  North,  but  cotton  alone  amounted  to  $191,000,000. 
In  imports,  the  North  had  $331,000,000  to  balance  $31,000,000  for 
the  South.  Its  banking  business  was  seven  times  as  large  as  that  of 
the  slave  states;  even  its  farm  lands  were  worth  nearly  three  times 
as  much,  and  the  total  estimated  value  of  property  at  the  South  was 
less  than  five  and  a  half  billions,  including  slaves  worth  nearly  three 
bilUons,  while  the  property  of  the  North  was  valued  at  eleven  bill- 
ions. In  manufacturing  a  still  greater  difference  existed,  for  the  free 
states  produced  just  ten  times  as  much  as  the  states  that  seceded,  and 
the  manufactures  of  New  York  alone  exceeded  those  of  all  the  slave 
states  by  a  hundred  millions. 

202.   The  Situation  in  1 861 .  —  Nevertheless,  the  situation  Dangers 
of  the  national  government  in  1861  was  a  precarious  one.   threatening 
The  South  had  practically  controlled  all  of  the  departments.    (1861). 
The  North  did  not  fully  realize  how  much  in  earnest  the 
South  was.     Commercialism  tended  to  create  a  spirit  of 
indifference.      The    disputes  over   the   character  of   the 
Federal  Union  made  it  necessary  to  use  authority  with 
caution.     Our  credit  was  poorer  than  it  had  been  in  years, 


i68 


The  American  Federal  State 


Slavery  the 
chief  cause 
of  failure. 

Cf.  Wilson, 
Division  ana 
Reunion,  W 
I19-123. 


War 
increases 
nationality 
and  destroys 
state  sover- 
eignty. 


and  the  fear  that  the  Union  might  be  dissolved  almost 
destroyed  it.  Europe  looked  with  favor  upon  the  South, 
with  whose  leaders  the  governing  classes  were  more  in 
sympathy.  But  the  same  energy  that  had  made  the  North 
what  it  was,  proved  itself  able  to  deal  with  the  situation. 
The  nation  responded  nobly  to  the  call  for  troops,  the 
banks  threw  in  their  lot  with  the  Union,  the  government 
created  an  army  and  navy,  its  authority  gathering  momen- 
tum as  the  war  progressed.  Meanwhile  industry  and  com- 
merce, instead  of  being  absorbed  by  the  war,  were  stimulated 
by  it.  The  vast  strength  of  a  system  of  free  labor  was  equal 
to  the  emergency. 

203.  The  Failure  of  Secession.  —  The  reasons  why  slavery 
failed  to  set  up  a  Confederate  government  of  its  own  are 
two  kinds.  The  cause  of  most  importance  is,  of  course, 
slavery  itself,  for  it  showed  its  weakness  in  those  very  par- 
ticulars in  which  the  free  system  was  so  strong.  Perhaps 
the  greatest  of  the  minor  causes  was  the  failure  of  the 
South  to  carry  with  it  the  border  slave  states.  Less  impor- 
tant was  the  inability  to  secure  European  recognition.  The 
South  had  military  and  political  leaders  of  great  ability; 
she  fought  nobly  on  her  own  soil  with  the  tremendous 
advantage  of  inside  lines.  She  exhausted  her  resources  of 
men  and  materials,  using  every  device  of  absolute  rule,  but 
to  no  purpose.  Slavery,  to  which  she  had  given  herself 
body  and  soul,  had  made  defeat  inevitable.  But  the  defeat 
meant  the  release  of  the  South  from  a  bondage  worse  than 
that  of  the  slave. 

The  failure  of  secession  was  accompanied  by  a  corre- 
sponding increase  of  nationality.  This  was  principally 
due  to  two  things:  (i)  The  outburst  of  national  feeling, 
whose  primary  object  was  the  preservation  of  the  Union. 
(2)  The  increase  of  national  authority,  made  necessary  in 
the  prosecution  of  the  war,  and  intensified  by  the  complete 
victory  of  the  Union  forces. 

This  new  nationality  in  the  period  of  reconstruction 
destroyed  every  vestige  of  secession  as  a  legal  right,  and 


Nationality  and  Slavery 


169 


its  underlying  principle,  state  sovereignty.  In  fact, 
nothing  that  had  espoused  the  cause  of  slavery  escaped 
uninjured  in  the  terrible  holocaust. 

204.  The  Constitution  during  the  Civil  War.  —  During 
this  crisis  it  is  interesting  to  notice  the  attitude  of  the  gov- 
ernment to  the  written  Constitution,  and  of  the  depart- 
ments to  each  other.  A  question  of  first  importance  came 
up  when  it  was  asked  whether  the  disorder  in  the  seceded 
states  constituted  an  insurrection  or  a  rebellion.  The  gov- 
ernment made  an  attempt  to  treat  it  as  an  insurrection,  but 
the  acts  of  Britain  and  France,  recognizing  the  belligerency 
of  the  Confederacy,  and  acts  of  the  national  government 
itself,  such  as  that  establishing  a  blockade,  made  this 
theory  untenable.  Another  question  was  how  far  the  con- 
stitutional guarantees  of  private  rights  were  compatible 
with  a  necessary  use  of  the  military  powers  of  the  Presi- 
dent. Where  insurrection  or  rebellion  actually  existed,  the 
conclusion  must  be  that  military  law  is  superior  even  to  the 
Constitution.  A  good  example  of  this  is  the  famous  Eman- 
cipation Proclamation,  by  which  citizens  of  the  seceded 
states  were  deprived  of  their  property  "without  due  process 
of  law."  We  must  further  conclude  that  in  parts  of  the 
country  where  there  is  disaffection  without  disorder,  the 
President  must  be  allowed  to  use  his  discretion.  The  at- 
tempt of  the  Supreme  Court  to  restrain  President  Lincoln 
from  suspending  the  writ  of  habeas  corpus  in  Maryland 
was  a  complete  failure,  and  showed  that  the  court  must 
not  attempt  to  interpret  the  Constitution  as  it  would 
in  times  of  peace,  unless  it  wishes  to  destroy  its  own 
influence.  Later,  however,  the  decision  in  the  Milligan 
Case  (1866)  supported  the  claim  which  is  likely  to  be 
recognized  in  the  future,  except  in  extreme  cases,  namely, 
that  the  military  courts  must  not  try  to  supplant  the  civil 
courts  where  the  latter  are  being  held.  Yet  it  will  proba- 
bly be  the  rule  that  the  judiciary  will  not  attempt  to 
interpret  the  Constitution  for  the  President,  who  in 
times  of  war  must  be  a  sort  of  dictator,  even  though  he 


A  few  viola- 
tions on  the 
ground  of 
public 
necessity. 

Johnston,  in 
Lalor,  11, 
432-434- 

Dunning, 
Civil  War 
and  Recon- 
struction, 
1-62. 

Tiedeman, 
Unwritten 
Const,  of 
U.  S.,  83-90. 


I/O 


The  American  Federal  State 


The  problem 
of  recon- 
struction. 


Five  theories 
as  to  the 

status. 

Dunning, 
Reconstruc- 
tion, 99-112. 


may  not  receive  the  full  support  of  Congress,  as  Lincoln 
did. 

205.  Reconstruction.  —  The  reconstruction  period  was 
much  more  productive  of  changes  in  the  written  and  the 
unwritten  constitutions  than  the  Civil  War  had  been.  The 
time  of  our  statesmen  was  largely  devoted  to  the  compli- 
cated problems  to  which  the  peculiar  condition  of  the 
seceded  states  gave  rise,  or  which  grew  out  of  the  duty  of 
the  government  to  the  negroes  just  freed  by  the  thirteenth 
amendment.  The  magnitude  of  these  problems  was 
unquestioned,  but,  unlike  many  difficulties  we  have  encoun- 
tered, the  solution  could  not  be  left  for  some  indefinite 
future  time.  It  was  necessary  to  take  action  at  once,  to 
map  out  a  policy  comprehensive  enough  to  cover  all  ques- 
tions, closely  in  touch  with  the  spirit  of  the  period,  yet  not 
inconsistent  with  our  previous  history. 

206.  Status  of  Seceded  States.  — The  greatest  legal  diffi- 
culties were  presented  by  the  questions  :  what  was  the  status 
of  the  seceded  states?  were  they  in  the  Union  or  out  of  the 
Union?  To  admit  that  they  were  out  of  the  Union  would 
have  been  to  acknowledge  the  right  of  secession,  the  suc- 
cess of  secession,  or  both.  If  it  was  claimed  that  they 
were  in  the  Union,  there  was  no  reconstruction  problem, 
only  need  of  restoration  to  their  normal  condition.  While 
a  direct  answer  to  this  question  was  seldom  given,  several 
theories  were  developed,  soon  after  1865,  presenting  dif- 
ferent points  of  view.  The  Southern  and  the  presidential  theo- 
ries agreed  that  the  states  were  still  parts  of  the  Union,  but 
out  of  their  constitutional  relations  to  the  central  govern- 
ment. They  stated  that  restoration  should  take  place  through 
action  of  the  people  of  each  state,  under  limitations  pre- 
scribed according  to  the  first  by  those  people;  according  to 
the  second  by  the  President.  Charles  Sumner  held  the 
theory  that  when  a  state  tries  to  secede,  it  commits  suicide 
as  a  state,  that  it  thereby  loses  all  organization  as  a  local 
political  society,  and  becomes  merely  a  part  of  the  territory 
of  the  Union,  under  its  control  in  regard  to  local,  as  well 


Nationality  and  Slavery 


171 


as  national  affairs,  i.e.  the  states  reverted  to  the  condition 
of  territories.  Thaddeus  Stevens  went  further,  and  in  the 
conquered  province  theory  advocated  the  view  that  the  South 
was  not  even  in  the  condition  of  territories;  that  it  was  a 
conquered  district.  He  therefore  proposed  wholesale  con- 
fiscation and  appropriation  of  land  to  negroes.  As  none  of 
these  theories  was  acceptable  to  moderate  men,  the  theory 
of  forfeited  rights  came  to  be  the  basis  of  final  reconstruc- 
tion. It  held  that  the  people  of  the  states  had  forfeited 
their  rights  by  attempted  secession,  and  that  those  rights 
could  be  restored  to  them  only  on  the  fulfilment  of  certain 
conditions.  The  judge  of  what  the  conditions  should  be, 
and  when  they  had  been  fulfilled,  was  Congress,  because 
Congress  was  instructed  by  the  Constitution  to  guarantee  to 
each  state  a  republican  form  of  government. 

207.  Plans  of  Restoration.  —  President  Lincoln  and  his 
successor.  President  Johnson,  were  anxious  to  have  the 
seceded  states  restored  to  their  constitutional  relations  as 
soon  as  possible.  To  this  end  they  used  their  power  as 
commanders-in-chief  to  grant  amnesties  and  pardons,  and, 
in  addition,  declared  that  when  a  state  government  had 
been  formed  by  loyal  voters  equal  to  one-tenth  of  the  whole 
number  of  voters  in  i860,  they  would  recognize  such  a  gov- 
ernment and  declare  the  state  fully  restored.  Lincoln's 
death  left  the  application  of  this  plan  to  Johnson,  who 
attempted  to  carry  it  out.  But  he  reckoned  without  his 
host,  for  Congress  objected  to  the  doctrine  that  restoration 
was  to  be  through  the  President,  and  proceeded  to  take 
full  charge  of  all  Southern  affairs. 

208.  Negro  Legislation.  —  Instead  of  dealing  at  the  first 
directly  with  problems  of  reconstruction  proper.  Congress 
contented  itself  with  the  care  of  the  freedmen.  A  bureau 
for  the  care  and  supervision  of  the  freedmen,  which  was  in 
the  beginning  considered  temporary,  was,  in  1866,  renewed 
with  greatly  enlarged  powers.  The  President  objected  on 
the  ground  that  the  bureau  was  suited  only  to  war  condi- 
tions, and  that  as  Congress  did  not  represent  the  Southern 


Lincoln's 
and  John- 
son's plans. 

Johnston,  in 
Lalor.  Ill, 
541  et  seq. 

Dunning, 
Reconstruc- 
tion, 75-87. 


Freedmen's 
Bureau  Bills. 

Wilson, 
Division  and 
Reunion, 

Johnston,  in 
Lalor,  III, 
546-549- 


1/2 


The  American  Federal  State 


Dunning, 
ibid.,  87-91. 

Civil  Rights 
Bill. 

Dunning, 
ibid.,  91-99. 


Five  military 
districts. 

Wilson, 
Division  and 
Reunion, 
§$  128-131. 

Johnston,  in 
Lalor,  III, 
551-554- 

Dunning, 
ibid.,  136- 
148 ;  176  et 
seq. 


States,  it  was  an  unconstitutional  body.  A  little  later  a 
similar  bill  was  passed  over  the  President's  veto.  This  was 
followed  by  the  much  more  radical  Civil  Rights  Bill.  The 
undoubted  purpose  of  the  act  was  to  protect  the  negroes 
from  the  discriminating  legislation  of  the  Southern  legisla- 
tures, which  sought  to  reestablish  a  form  of  serfdom.  To 
do  this,  it  made  the  negroes  citizens,  and  declared  that 
they  had  the  rights  of  citizens  to  hold  property,  sue  and  be 
sued,  to  give  testimony,  and  of  equal  protection  of  the 
laws.  Elaborate  provision  was  made  for  the  proper  enforce- 
ment of  the  measure  by  national  authority.  The  bill  was 
promptly  vetoed  by  Johnson,  but  as  promptly  passed  over  the 
veto.  In  order  to  place  these  rights  beyond  the  power  of 
future  congresses,  the  fourteenth  amendment  was  soon  after 
proposed,  not  only  making  the  negro  a  citizen,  but  bringing 
pressure  to  bear  upon  the  states  to  grant  him  the  franchise. 
209.  Military  Reconstruction.  —  Congress  then  devoted 
itself  to  the  problem  of  reconstruction.  It  had  by  this  time 
thoroughly  broken  with  the  President,  and  did  everything 
in  its  power  to  injure  him.  In  the  military  reconstruction 
bills  (1867),  the  whole  subject  was  left  to  Congress  or  to  the 
general  of  the  army.  The  South  was  to  be  divided  into 
five  military  districts,  each  under  the  control  of  a  military 
commander  with  almost  absolute  power.  Under  the  super- 
vision of  this  commander,  a  registration  was  to  be  made  of 
all  male  persons  of  voting  age,  except  those  disqualified  by 
participation  in  rebellion.  A  state  constitutional  convention 
was  to  be  chosen  by  these  registered  voters,  the  fourteenth 
amendment  was  to  be  ratified,  and  no  registered  voters  were 
to  be  disfranchised.  If  the  constitution  met  with  the 
approval  of  these  voters  in  the  states  and  of  Congress,  the 
state  was  to  be  considered  a  full  member  of  the  Union. 
Under  these  acts  military  reconstruction  was  completed  in 
all  of  the  states  except  Tennessee,  which  had  been  "  read- 
mitted" in  1866,  and  in  Texas,  Mississippi,  Virginia,  and 
Georgia,  which  were  obliged  to  pass  the  fifteenth  amend- 
ment, also,  as  a  condition  of  "readmission." 


Nationality  and  Slavery  173 

210.  Impeachment  of  President  Johnson.  —  Ever  since  Conflict 
the  passage  of  the  second   Freedmen's  Bureau  Bill  the  ^etween 

^         "  ,  Johnson  and 

executive  and  legislative  branches  had  been  getting  more  congress, 
and  more  out  of  sympathy  with  each  other.      Congress   py^nine 
proceeded  to  pass  all  important  measures  over  the  veto  ibid.,  253- 
with  unfailing  regularity.     But  it  did  more.     It  (1867)   ^^• 
arranged  its  sessions  so  that  they  should  be  practically  con- 
tinuous, took  from  the  President  the  powers  of  issuing  gen- 
eral proclamations  of  pardon,  of  suspending  the  writ  of 
habeas  corpus^  and  of  removing  ofificials.    It  virtually  placed 
control  of  the  army  in  the  hands  of  General  Grant.     The 
President  could  retaliate  only  by  denouncing  Congress, 
which  he  did  in  most  intemperate  language.    He  attempted 
to  ignore  the  Tenure  of  Office  Act,  which  had  taken  from 
him  the  power  to  remove  national  executive  officials;  but 
by  that  succeeded  in  arousing  Congress  to  such  a  pitch  that 
articles  of  impeachment  were  brought  against  him  by  the   Impeach- 
House  of  Representatives.     The  charges,  of  which  there   ""^n*  charges 
were  eleven,  were  principally  of  a  political  nature,  and 
party  feeling  ran  so  high  that  the  danger  of  conviction  was  j-^,'^""^^! 
very  great.     After  a  long  trial  the  Senate  voted  (35  to  19)   303. 
that  the  President  was  guilty  of  the  principal  charge  brought  Johnston,  in 
against   him.      As   a   two-thirds   majority  had   not  been   Laior,  11, 
obtained,  most  of  the  other  charges  were  dropped.  4244. 

211.  Effect  of  the  Verdict  on  Impeachment.  —  The  acquit-  Prevented 
tal  of  Johnson  had  been  due  to  the  belief,  on  the  part  of  ^''f^"^',^^ 
certain  leaders  in  the  Senate,  that  conviction  would  greatly  nation  to 
damage  our  constitutional  system  by  leading  to  the  perma-   Congress, 
nent  subordination  of  the  executive  to  the  legislative  branch. 

The  truth  of  that  belief  is  only  too  apparent  when  we  come 
to  consider  the  relation  of  the  two  departments  during  the 
next  twenty  years.  While  the  President's  chair  was  occu- 
pied most  of  the  time  by  men  respected  and  trusted  by 
Congress,  the  executive  was  almost  without  authority  and 
influence.  What  the  effect  would  have  been  had  Johnson 
been  removed  from  office  by  political  passion,  it  is  impos- 
sible to  say.     There  can,  however,  be  no  uncertainty  that 


174 


The  American  Federal  State 


The  XIII 

Amendment 

(i86s). 


The  XIV 

Amendment 

(1868). 


The  XV 

Amendment 

(1870). 


the  executive  demoralization  that  must  have  followed  the 
elevation  of  a  reconstruction  leader  to  the  chief  magistracy, 
coupled  with  the  moral  effect  of  conviction  on  both  depart- 
ments, would  have  produced  a  radical  change  in  our  system 
of  government,  perhaps  for  better,  probably  for  worse. 

212.  The  Amendments ;  Provisions.  —  The  changes  in  the 
written  Constitution  were  embodied  in  three  amendments, — 
the  thirteenth,  fourteenth,  and  fifteenth.  The  first  had  been 
proposed  by  Congress  February  i,  1865,  and  abolished 
slavery  in  every  part  of  the  Union.  It  was  declared  ratified 
December  18  of  the  same  year.  The  fourteenth  amend- 
ment did  for  the  Civil  Rights  Bill  what  the  thirteenth  had 
done  for  the  Emancipation  Proclamation,  but  it  covered 
other  subjects.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  its  jurisdiction,  were  declared 
to  be  citizens  of  both  the  United  States  and  of  the  state  in 
which  they  resided.  No  citizen  of  the  United  States  was 
to  have  his  privileges  or  immunities  abridged  by  the  states, 
"nor  should  any  person  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law."  If  a  state  attempted 
to  cut  off  any  class  of  adult  male  citizens  from  the  franchise, 
it  was  to  lose  a  proportional  number  of  representatives  in 
the  lower  house.  The  validity  of  the  United  States  debt 
was  not  to  be  questioned,  but  all  Southern  state  debts 
incurred  during  the  war  were  declared  illegal.  The  amend- 
ment was  proposed  in  1866,  and  was  proclaimed  a  part  of 
the  Constitution  in  July,  1868.  The  next  year  Congress 
proposed,  in  the  fifteenth  amendment,  that  "the  right  of 
citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  state,  on  account 
of  race,  color,  or  previous  condition  of  servitude."  As 
with  the  other  amendments.  Congress  was  to  have  power  to 
enforce  it  by  appropriate  legislation.  On  March  30,  1870, 
ratification  was  completed  and  changes  in  the  written 
Constitution  ceased. 

213.  The  Supreme  Court  on  Reconstruction  Questions.  — 
By  its  interpretation  of  the  reconstruction  acts  and  of  the 


Nationality  and  Slavery 


175 


amendments,  the  Supreme  Court  played  a  very  important 
part  in  the  history  of  this  time.  In  Texas  v.  White  (1868) 
the  court  declared  that  there  was  an  "  indestructible  Union  of 
indestructible  states";  that  no  state  had  lost  its  statehood, 
but  that,  nevertheless,  when  a  state  is  out  of  its  ordinary 
relations  to  the  nation,  Congress  had  the  power  to  restore 
it  to  its  proper  position. 

In  the  Slaughter  House  Cases  (1873)  and  in  the  Civil 
Rights  Cases  (1883)  the  court  gave  its  construction  of  the 
first  clause  of  the  fourteenth  amendment.  In  the  former, 
attention  was  called  to  the  fact  that  the  privileges  of  a 
citizen  of  the  United  States  are  different  from  the  privi- 
leges of  the  citizen  of  a  state,  and  that  the  purpose  of  the 
amendment  was  to  keep  the  states  from  infringing  upon  the 
privileges  of  United  States  citizens,  not  at  all  to  regulate 
the  rights  of  citizens  of  a  state  as  affected  by  state  laws. 
By  this  decision  the  court  failed  to  nationalize  civil  rights 
as  it  might  easily  have  done,  but  carefully  protected  the 
rights  of  the  states  from  the  aggressions  of  Congress. 

In  the  Civil  Rights  Cases  the  law  of  Congress  (1875) 
prohibiting  any  discrimination  by  railroads,  innkeepers, 
and  others,  on  account  of  color,  was  held  to  be  in  excess 
of  the  powers  of  Congress,  because  the  civil  rights  dealt 
with  by  the  act  were  rights  of  citizens  of  the  states. 

While  the  court  limited  itself  to  a  strict  construction  of 
the  fourteenth  amendment,  it  made  use  of  the  doctrine  of 
implied  powers  in  regard  to  paper  money.  The  first  deci- 
sion (1870)  was  that  the  issuing  of  paper  money  (1862, 
1863,  §601)  was  a  war  measure,  not  justified  in  times  of 
peace.  In  the  Legal  Tender  Cases  (1872,  and  again  1884) 
the  court  reversed  its  decision,  and  recognized  the  right  of 
Congress  to  issue  "greenbacks  "  at  its  own  discretion.  The 
general  influence  of  these  opinions  on  the  relations  of  the 
states  to  the  nation,  and  on  the  powers  of  Congress,  was 
almost  inestimable. 

314.  The  Aftermath  of  Reconstruction. — After  the  se- 
ceded states  had  been  "readmitted,"  there  was  left  to  them 


Texas  v. 

White 

(1868). 

Dunning, 
Reconstruc- 
tion, 133-135. 


The  Slaugk- 
ter  House 
Cases  (1873). 
Cf.  §§  248- 
249. 


Civil  Rights 
Cases  (1883). 


Cases 
affecting 
United 
States  notes. 

Knox.  U.S. 
Notes,  156- 
166. 


"Carpet- 
bag "govern- 
ment. 


176 


The  American  Federal  State 


Johnston,  in 
Lalor,  III. 
554-556. 


Disorder  and 
the  force  acts. 

Wilson, 
Division 
and  Rtunion, 
hk  134.  13s. 

Johnston,  in 
Lalor,  II. 
680-683. 

The  electoral 

commission 

(1877). 

Johnston,  in 
Lalor,  II, 
50-53- 


the  great  difficulties  of  reorganizing  their  state  govern- 
ments. In  the  formation  of  the  new  constitutions,  the 
negroes  had  been  allowed  to  vote  according  to  the  pro- 
visions of  the  Civil  Rights  Bill.  For  a  majority  of  the 
states,  the  control  of  political  affairs  remained  for  several 
years  in  the  hands  of  freedmen,  without  training  or  capac- 
ity for  governing,  and  frequently  led  by  white  adventurers, 
more  capable  perhaps,  but  less  scrupulous  than  themselves. 
The  result  was  misrule,  scarcely  equalled  in  extravagance 
or  corruption  by  our  large  cities  during  their  worst  periods 
of  bad  government.  In  a  short  time  several  of  the  states 
found  themselves  burdened  with  debts  of  ^40,000,000  each. 

To  such  government  the  better  classes  refused  to  submit. 
By  methods  similar  to  those  employed  by  the  famous  "  Ku 
Klux,"  by  intimidation  and  fraud,  the  whites  often  suc- 
ceeded in  gaining  possession  of  the  government  or  in  set- 
ting up  a  rival  organization.  In  these  serious  civil  disputes, 
Congress  sought  to  protect  its  new  citizens  by  the  use  of 
national  authority,  applied  in  "  force  "  acts,  but  it  was  not 
successful  in  maintaining  order. 

This  state  of  affairs  came  near  causing  a  crisis  in  the 
presidential  election  of  1876.  Two  sets  of  returns  were 
sent  in  by  Louisiana,  South  Carolina,  and  Florida.  As 
Congress  was  unwilling  to  give  the  president  of  the  Senate 
discretion  as  to  which  he  should  count  (twelfth  amend- 
ment), it  finally  agreed  to  create  an  "electoral  commis- 
sion," composed  of  five  senators,  five  representatives,  and 
five  justices  of  the  Supreme  Court.  The  decision  of  this 
commission  was,  fortunately,  accepted  by  all  parties,  and 
a  serious  danger  averted. 


QUESTIONS  AND  REFERENCES 

Slavery  before  1845  (§§  191-194) 

a.  Compare  the  accounts  on  slavery  given  by  Von  Hoist,  ConstitU' 
tional History,  I,  302-339 ;  Burgess,  Middle  Period,  chap.  Ill ;  Rhodes, 
United  States,  I,  chap.  I;  Draper,  Civil  War,  Vol.  I;  Gttt\cy,  Ameri- 
can Conflict,  I,  49  et  seq. 


Nationality  and  Slavery  177 

1.  Under  what  conditions  would  slavery  have  been  favorable  to 
nationality  ?  Were  there  any  instances  in  our  history  when  slavery 
was  not  sectional  ? 

2.  Show  clearly  whether  the  "  clock  of  ages  was  turned  back  full 
half  a  century  by  the  Constitution  of  1787,"  and  why. 

3.  Write  an  outHne  sketch  of  the  history  of  emancipation  in  Eu- 
rope and  in  European  colonies  during  the  nineteenth  century. 

4.  Had  there  been  any  doubt  in  1787  and  in  1820  as  to  the  right 
of  Congress  to  prohibit  slavery  in  the  territories  ? 

5.  Make  a  table  showing  the  action  of  Congress  regarding  slavery 
in  the  public  domain  from  1787  to  1862.  Compare  areas  closed  to 
or  left  open  to  slavery. 

6.  Was  there  more,  or  less,  nationality  in  the  United  States  in  1845 
than  in  1825  ?  why  ? 


Slavery  in  the  Territories  (§§  195-197) 

a.  Study  Webster's  "Seventh  of  March  Speech"  (1850)  in  Ameri- 
can Orations,  III.  Notice  what  statements  called  forth  especial  com- 
ment. For  that  comment  consult  notes  on  the  speech,  Lodge's  Webster, 
Burgess's  Middle  Period,  Rhodes's  United  States,  etc. 

b.  Read  the  "  Dred  Scott "  decision  in  Thayer's  Cases  in  Constitu- 
tional Law  and  the  extracts  from  opinions  in  Macdonald's  Documents. 
The  best  short  account  is  in  Burgess.  Consult  Rhodes  for  views  of 
North  and  South  at  the  time,  Douglas's  confession  in  his  debate  with 
Lincoln  (Vol.  II"),  and  conflicting  views  in  the  Charleston  convention 
of  i860. 

1.  Did  the  measures  included  in  the  Compromise  of  1850  give  a  vic- 
tory to  the  North  or  to  the  South  ? 

2.  Just  what  is  meant  by  "  popular  sovereignty  "  ?  Did  the  Com- 
promise of  1850  repeal  that  of  1820  ?  So  long  as  the  state  of  Mis- 
souri was  no  longer  under  the  control  of  Congress,  what  moral  right 
had  that  body  to  repeal  the  Missouri  Compromise  ?  Has  Congress  a 
right  to  pass  irrepealable  laws  ?  Give  your  reasons  in  full.  Was  the 
repeal  of  the  Missouri  Compromise  a  political  mistake  ? 

3.  Which  was  more  in  conformity  with  our  customs  and  our  institu- 
tions, popular  sovereignty  or  territorial  government  by  Congress  ?  If 
the  slavery  question  was  to  be  left  to  the  territories,  why  not  follow 
Chase's  suggestion,  and  leave  them  complete  self-government  ? 

4.  Compare  the  opinion  of  Taney  with  the  dissenting  opinion  of 
Curtis.  Which  gives  the  stronger  argument  on  the  question  of  negro 
citizenship  ?  Do  you  approve  Taney's  position  on  the  relation  of  the 
nation  to  "  Missouri  territory  "  ? 

N 


178  The  American  Federal  State 

5.  What  was  the  effect  of  the  decision,  and  what  would  have  been 
the  effect  had  Curlis's  position  been  upheld  upon  (a)  slavery  in  the 
territories,  (J>)  slavery  in  the  free  states,  {c)  slavery  in  the  slave  states, 
and  (a')  sentiment  in  the  North  and  the  South  ? 

6.  Was  the  decision  dangerous  to  the  North  ?  Was  it  approved  by 
Douglas  and  the  Northern  Democrats  ?  Was  compromise  between  the 
North  and  South  possible  after  the  decision  ? 

Secession  and  Civil  W2u:  (§§  198-204) 

a.  For  the  difference  between  the  slave  and  free  states  consult  Help- 
er's Impending  Crisis,  chaps.  I,  VIII;  Von  Hoist's  Constitutional  His- 
tory, I,  240-256;  Wright's  Industrial  Evolution  of  the  United  States, 
chap.  XII;  Hart's  "  Why  the  South  failed  in  the  Civil  War,"  in  Practi- 
cal Essays  on  Government. 

1.  What  is  secession  ?  State  the  difference  between  nullification 
and  secession.  Are  either  based  upon  the  national  theory  of  the  Con- 
stitution ?  Why  was  the  Constitution  silent  on  the  subject  ?  What  is 
the  difference  between  state  rights  and  state  sovereignty  ? 

2.  Could  anything  but  slavery  have  caused  secession  ?  Show  clearly 
how  it  led  to  secession.  Can  you  imagine  that  the  North  might  have 
seceded  ?  If  so,  under  what  conditions,  and  on  what  constitutional 
grounds  ? 

3.  How  far  had  the  North  controlled  the  central  government  from 
1830  to  i860  ?  how  far  had  the  South  ?  Was  the  victory  of  the  Re- 
publican party  a  menace  to  slavery  in  the  states  ?  (Study  carefully 
Republican  platform,  views  of  leaders,  etc.) 

4.  Compare  the  constitution  of  the  Confederate  states  with  that  of 
the  United  States.  In  what  do  they  differ  principally  ?  Were  the 
states  more  nearly  sovereign  in  the  former  ?  Compare  the  Confed- 
eracy with  the  Union  in  population,  size  of  army  and  navy,  finances, 
dependence  on  outside  countries  for  war  necessaries. 

5.  What  "  war  powers  "  were  exercised  by  the  President  ?  Which 
ones  were  unconstitutional  ?  which  ones  extra-constitutional  ?  Is  there 
a  "  law  higher  than  the  Constitution,"  judged  by  the  events  from  1850 
to  1865  ?  judged  by  the  "  presidential  dictatorship  "  ? 

Reconstruction  (§§  205-214) 

a.  On  the  impeachment  of  Johnson  consult  Sherman's  Recollec- 
tions, I,  413-432,  and  Blaine's  Twenty  Years  in  Congress,  II,  341-384, 
on  the  one  hand,  and  Cox's  Three  Decades,  578-594,  Ross,  E.  G.,  in 
Scribner's,  XI  (1892),  519-524,  on  the  other.     Consider  the  view  of 


Nationality  and  Slavery  179 

Chadsey  in  his   Strugglt  between  President  Johnson  and  Congress, 
chap.  VI. 

1.  How  were  the  negroes  treated  in  the  South  in  1866  ?  What 
new  principles  did  the  Civil  Rights  Bill  incorporate  into  our  system  ? 
Why  was  it  immediately  followed  by  the  fourteenth  amendment  ? 

2.  How  did  the  military  reconstruction  bills  invade  the  sphere  of 
duties  and  powers  heretofore  exercised  by  the  state  governments  ? 
Did  Congress  have  the  right  to  reimpose  conditions  on  the  states 
before  they  were  recognized  as  members  of  the  Union  ? 

3.  Did  the  changes  of  the  Civil  War  and  the  reconstruction  period 
amount  to  a  revolution  ?  for  what  reason  ? 

4.  Make  a  complete  comparison  of  the  Emancipation  Proclamation 
and  the  thirteenth  amendment;  of  the  Civil  Rights  Bill  and  fourteenth 
amendment. 

5.  Make  a  careful  study  of  the  first  paragraph  of  the  fourteenth 
amendment.  Had  there  been  a  United  States  citizenship  before  1868  ? 
If  so,  in  what  respects  was  it  different  from  that  after  1868  ?  Did  Con- 
gress intend  to  nationalize  civil  rights  by  this  clause  ?  What  advan- 
tages have  we  derived  from  the  interpretation  placed  upon  it  by  the 
Supreme  Court  in  the  Slaughter  House  Cases  ?  what  disadvantages  ? 

6.  Was  the  electoral  commission  constitutional  ?  What  was  its 
chief  duty  ?  Would  it  have  been  a  success  in  Mexico  ?  in  France  ? 
Can  the  difficulties  of  1877  recur  ?  Is  the  principle  of  the  electoral 
count  bill  (1886)  wise  ?    (§  333.) 


CHAPTER   IX 

THE  NEW  NATION 
General  References 

Johnston,  American  Politics,  XXIV-XXVII. 

Channing,  Studenfs  History,  573-603. 

Montgomery,  Studenfs  History  of  the  United  States,  485-542. 

Wilson,  Division  and  Reunion  (to  1889),  273-299. 

Wright,  Industrial  Evolution  of  the  United  States,  159-352.  The  best 
brief  account  of  economic  changes  since  i860. 

Cleveland,  Growth  of  Democracy. 

Carnegie,  Triumphant  Democracy. 

Boutwell,  The  Constitution  at  the  End  of  the  First  Century.  Under 
an  analysis  of  the  Constitution  gives  the  construction  placed  upon 
the  more  important  clauses  by  the  Supreme  Court. 

Tiedeman,  Unwritten  Constitution  of  the  United  States.  A  very  sug- 
gestive little  book. 

Personal  accounts  of  Cox,  Sherman,  McCuUoch,  and  Blaine,  as  in  last 
chapter. 

Appleton's  Annual  Cyclopedia  (1865-  ).  A  storehouse  of  facts 
and  documents. 

Cyclopedic  Review  of  Current  History  (1890-  ).  The  best  con- 
tinuous contemporary  narrative. 

Durand,  "Political  and  Municipal  Legislation"  (1895-1899),  in 
A.  A.  A. 

Whitten,  "Political  and  Municipal  Legislation"  (1899-  ),  in 
A.  A.  A. 

Dunning  et  al.,  "  Review  of  Current  Events,"  in  each  volume  of 
P.  S.  Q. 

Stimson,  "  Economic  and  Social  Legislation,"  in  Yale  Revitiv. 

Shaw,  "  Current  Topics,"  monthly,  in  R.  of  R. 

Summary  of  Legislation  by  States,  published  by  the  New  York  State 
Library  yearly  since  1890. 

Current  periodicals.     Consult  periodical  indexes   under   titles   United 
States,  Corporations,  Railways,  Legislation,  Suffrage,  Strikes,  etc. 
180 


The  New  Nation 


i8i 


215.  Economic  Conditions  before  the  Civil  War.  — All  of 
our  wars  have  been  productive  of  great  changes,  not  alone 
in  our  political  life,  but  in  the  life  of  the  people  and  con- 
ditions affecting  their  occupations.  The  results  of  the 
Civil  War  were  necessarily  more  important  than  those  of 
smaller  conflicts,  and  the  reorganization  following  its  close 
was  not  confined  to  political  and  social  lines,  but  entered 
into  commerce,  industry,  and  other  every-day  affairs. 
Everywhere,  and  all  the  time,  this  reorganization  tended 
to  produce  a  stronger  national  feeling  and  a  new  national 
life. 

In  ante-bellum  days  the  country  was  still  largely  devoted 
to  agriculture.  Manufacturing  was  on  the  increase,  but  no 
single  plant  involved  very  great  capital  or  commanded  an 
extensive  market.  Few  of  the  railroads  crossed  from  one 
state  to  another,  although  there  was  even  then  a  marked 
tendency  toward  consolidating  several  small  roads  into  one 
large  one.  There  was  almost  no  national  currency,  most 
of  the  coins  in  use  bearing  a  German  or  a  Spanish-Ameri- 
can stamp;  and  the  bills  in  use  were  issued  by  state  banks, 
so  that  they  were  subject  to  great  discount  outside  of  that 
state.  All  of  these  things  hampered  the  production  and 
transportation  of  goods  on  a  large  scale. 

216.  Economic  Conditions  after  the  War.  —  How  different 
was  the  situation  after  the  war!  The  state  banks  had  been 
compelled  to  withdraw  their  bills  from  circulation  because 
of  the  prohibitory  tax  of  ten  per  cent  placed  upon  them 
by  the  central  government.  The  country  was  flooded  with 
greenbacks,  of  which  four  hundred  and  fifty  million  dollars' 
worth  had  been  printed  and  paid  out  by  the  United  States, 
and  with  national  bank  bills.  Gold  and  silver  were  no 
longer  used  in  ordinary  transactions,  as  a  paper  dollar  was 
legally  as  valuable  as  one  of  silver,  though  actually  worth 
much  less.  Consequently,  prices  were  high,  speculation 
was  becoming  more  common,  and  large  investments  of 
capital  were  constantly  being  made.  The  construction  of 
a  transcontinental  railway  is  evidence  of  the  new  spirit 


New  national 
conditions 
produced  by 
the  war. 


Ante-bellum 
conditions 
unfavorable 
to  industry 
or  commerce 
on  a  large 
scale. 


All  condi- 
tions aided 
industrial 
development. 


1 82 


The  American  Federal  State 


Statistics 
showing 
growth  from 
i860  to  1900. 

Wright, 
Industrial 
Evolution, 
159-188. 


Formation 
of  great 
corporations. 


of  the  business  world.  Manufacturing  had  been  stimulated 
by  the  need  of  providing  our  troops  with  necessaries,  and 
in  procuring  materials  for  the  prosecution  of  military  cam- 
paigns. When  peace  came,  conditions  were  most  favor- 
able to  manufacturing;  for,  during  the  war,  it  had  been 
necessary  to  raise  revenue  by  taxes  on  articles  produced  in 
this  country,  and  in  order  to  protect  home  industry  from 
too  great  foreign  competition,  the  duties  on  goods  imported 
had  been  raised  to  correspond.  So  great  was  the  opposi- 
tion to  the  internal  taxes  that  they  were  now  removed  as 
quickly  as  possible,  but  no  change  was  made  in  the  duties. 
This  assured  sufficient  protection  to  warrant  the  investment 
of  still  more  money  in  industry.  It  was  customary  to  form 
companies,  incorporated  under  state  law;  but  the  sale  of 
stock  in  these  corporations  was  not  confined  to  a  single 
state,  nor  were  its  products  sold  within  as  limited  an  area 
as  formerly. 

217.  Development  of  Industry  and  Commerce. — Some 
idea  of  the  tremendous  internal  development  of  this  coun- 
try since  i860  may  be  obtained  by  comparing  statis- 
tics of  that  year  with  those  of  later  dates.  In  i860  the 
amount  of  capital  invested  in  manufacturing  was  almost 
exactly  $1,000,000,000,  and  the  value  of  the  product  was 
less  than  $2,000,000,000.  In  1890  the  capital  was  over 
$6,000,000,000,  and  the  products  over  $9,000,000,000, 
and  during  the  last  ten  years  the  increase  has  been  equal 
to  that  of  any  previous  decade.  Our  commerce  within 
the  United  States  has  increased  in  much  the  same  ratio. 
In  i860  our  30,000  miles  of  railroad  received  scarcely 
$275,000,000  for  transporting  freights;  in  1880,  with  85,000 
miles  operated,  the  gross  receipts  from  this  branch  were 
$467,748,928.  To-day  (1901)  we  have  over  190,000  miles  of 
line,  representing  an  investment  of  nearly  $12,000,000,000, 
and  earning  nearly  $1,000,000,000  a  year  aside  from 
revenue  derived  from  passengers. 

We  cannot  expect  that  this  increase  in  business  was 
accompanied  with  no  new  methods.     For  our  purpose,  it 


The  New  Nation  183 

will  be  sufficient  to  call  attention  to  the  great  consolidation 
of  capital  which  has  made  possible  production  or  transpor- 
tation on  a  large  scale.  This  is  no  new  thing.  It  has  been 
going  on  all  the  time,  but  it  has  been  more  rapid  since  the 
Civil  War,  and  especially  rapid  during  the  last  two  or  three 
years.  Before  i860  the  largest  railroad  in  the  country 
boasted  less  than  1000  miles  of  track.  Now  there  are 
nine  companies,  each  of  which  control  at  least  5000  miles 
of  rail.  Before  the  war  a  corporation  with  capital  of 
^1,000,000  was  the  exception.  Between  1898  and  1900 
a  large  number  claiming  capital  stock  of  over  1^25,000,000 
were  formed. 

218.  The  Control  of  Railroads.  —  These  economic  changes  Need  of 
have  been  the  most  characteristic  feature  of  the  new  nation.  «>"^o^' 
The  control  of  the  corporations  which  have  grown  up  at  the 
same  time  has  proved  to  be  a  serious  problem  to  both  the 
state  and  the  national  governments.  Many  of  them  are  of 
such  a  character  that  they  either  have  special  privileges 
conferred  upon  them  by  law,  or  have  a  monopoly  of  the 
trade  in  their  line,  in  spite  of  legislation. 

Since  the  railroads  were  the  first  corporations  of  impor-  state  rail- 

tance,  state  railway  commissions  were  organized  as  early  as  ^'^y  *^°™" 
^  _,  .  _  ,         ,  missions. 

1870.     They  were  given  power  to  fix  rates  and  make  regu- 
lations;   but    before    long    they   encountered    difficulties  i^aiiroad 
because  the  railroads  ran  into  other  states.     Attempting  to    Transporta- 
control  the  portion  of  the  railroad  outside  of  the  state,   ''<"*.  134-145- 
their  acts  were  reviewed  by  the  United  States  Supreme 
Court,  which  declared  them  unconstitutional  on  the  ground 
that  only  the  central  government  could  regulate  interstate 
commerce.     Soon  after,  the  recognized  need  of  such  inter- 
state control  led  Congress  to  pass  the  Interstate  Commerce  interstate 
Act  (1887).     The  purpose  of  this  measure  was  threefold:  commr^*ion 
(i)  to  see  that  rates  are  reasonable;  (2)  to  prevent  a  rail-   (1887). 
road  from  charging  one  person  more  than  another  for  the  Das  Passos, 
same  service,  or  from  asking  more  for  a  shorter  distance  Intentate 
than  for  a  longer  one;  and  (3)  to  prevent  combinations  of  ^^^ 
railroads  for  the  purpose  of  "  pooling  "  profits.     In  order 


1 84 


The  American  Federal  State 


Government 
interference 
in  strikes 
(1877,  1894). 

Wright, 

Industrial 

Evolution, 

301-306, 

313-317. 


State  law 
regarding 
incorpora- 
tion and 
control. 

Whitten, 
Trend  of 
Legislation, 
41S-419. 


National 
anti-trust  law 
of  1890. 


that  this  law  might  not  be  a  dead  letter,  an  interstate  com- 
merce commission  of  five  members  was  appointed,  with 
power  to  hear  and  decide  disputes,  and  call  upon  the 
national  courts  to  enforce  its  decisions. 

In  cases  of  strikes,  the  state  and  national  governments 
are  often  asked  to  interfere.  The  great  railway  strike  of 
1877  was  productive  of  great  disorder,  which  ceased  when 
the  United  States  troops  were  sent  by  the  President,  at  the 
request  of  state  governors.  During  the  railway  strike  of 
1894,  the  state  militia  was  used  in  many  places,  and  the 
regulars  were  sent  to  Illinois  to  protect  national  property 
and  the  United  States  mails,  in  spite  of  the  protest  of  the 
state  executive. 

219.  Regulations  for  Industrial  Corporations.  —  It  is 
surprising  how  many  provisions  dealing  with  industrial 
regulation  have  been  inserted  in  recent  constitutions,  and 
what  a  large  part  of  state  legislation  has  been  devoted  to 
this  subject.  Incorporation  always  takes  place  under  gen- 
eral laws,  and  most  constitutions  specify  that  charters  may 
be  amended  or  revoked  at  the  wish  of  the  legislature. 
Attempts  are  made  to  protect  the  public  by  fixing  the  indi- 
vidual responsibility  of  the  directors,  by  making  companies 
open  their  accounts  to  the  inspection  of  those  interested, 
and  in  other  ways.  A  great  many  commonwealths  have 
tried  to  prevent  the  further  combination  of  capital,  and 
have  made  drastic  laws  to  control  trusts,  but  usually  with- 
out success.  More  often  than  not  this  legislation,  hasty, 
ill-considered,  and  passed  in  ignorance  of  natural  eco- 
nomic laws,  has  done  harm  rather  than  good.  Recently 
there  has  been  a  movement  to  have  a  large  number  of  states 
adopt  the  same  laws  regarding  corporations.  This  shows 
that  industry  is  no  longer  a  state  affair,  and  that  national 
action  is  becoming  more  necessary. 

According  to  the  Constitution,  Congress  has  almost  no 
power  over  industry,  because  few  corporations  are  erected 
under  national  law.  In  1890,  however,  an  anti-trust  law 
was  passed,  which  attempted  to  prevent  the  combination 


The  New  Nation 


185 


of  capital  for  the  control  of  interstate  or  foreign  trade 
and  commerce;  but,  of  course,  it  does  not  cover  the  vast 
number  of  corporations  doing  business  solely  within  state 
limits. 

In  1899  ^  national  industrial  commission  was  created 
for  the  purpose  of  investigating  conditions  throughout  the 
country  and  of  recommending  to  the  states  some  plan  that 
might  be  feasible  for  the  control  of  corporations. 

Combinations  of  labor,  as  well  as  combinations  of  capi- 
tal, are  subject  to  state  supervision.  The  adjustment  of 
difficulties  between  employer  and  the  employee  is  occupy- 
ing a  constantly  larger  place  in  the  work  of  legislation  and 
administration.  Those  features  of  strikes  which  interfere 
with  the  rights  of  others,  or  cause  the  destruction  of  prop- 
erty, are  prevented  by  the  courts  and  through  the  exercise 
of  the  police  power.  The  prevention  of  strikes  has  been 
attempted  by  the  use  of  boards  of  arbitration. 

220.  The  Tariff.  —  Our  business  has  been  greatly,  though 
indirectly,  affected  by  the  action  of  the  Congress  on  the 
money  standard  and  on  imported  articles.  Both  of  these 
subjects  have  been  made  prominent  in  political  circles,  so 
that  many  of  our  elections  since  the  war  have  turned  upon 
them.  A  brief  consideration  of  the  main  points  of  each 
is  all  that  will  be  given  here,  as  they  will  be  treated  more 
fully  later. 

The  war  tariff  of  1864  continued  to  aid  the  development 
of  industry,  and  was  scarcely  changed  at  all  till  1883,  when 
many  of  the  protective  duties  were  increased.  The  opposi- 
tion to  this  high  protection  was  the  basis  of  the  presiden- 
tial elections  of  1888  and  1892,  the  former  being  won 
by  the  protectionists  who,  in  1890,  passed  a  bill  placing 
many  articles  on  the  free  list,  but  increasing  the  duties  on 
those  left.  In  1893  a  measure  ostensibly  for  revenue  only, 
but  in  the  end  involving  no  real  principle,  replaced  the 
McKinley  Bill;  and,  in  1897,  this,  in  turn,  gave  way  to  the 
Dingley  bill,  which  was  more  consistent,  but  avowedly 
protectionist. 


Stimson, 
Handbook  of 
Labor  Law, 
334-347- 

National 
industrial 
commission. 


Control  of 
labor  dis- 
putes. 

Stimson, 
Labor  in 
Relation  to 
Law,  78-117. 


Economic 
questions  in 
national 
politics. 


The  tariffs 
( I 864-1 897). 

Cf.  hk  539. 
609,  610. 


1 86 


The  American  Federal  State 


The  silver 

question 

(1873-1896). 

Cf.  $§  540, 
599. 


Restrictions 
upon  the 
legislatures. 

Cf.  §§  422- 
426. 

Biyce,  339- 
341- 


23  X.  The  Currency.  —  At  the  close  of  the  war  there  was 
no  coin  in  circulation,  as  we  have  seen,  and  it  was  not 
until  1879  that  the  United  States  government  dared  to 
resume  specie  payments  and  redeem  its  paper  in  gold.  In 
the  meantime  (1873)  a  change  had  been  made  in  the  laws, 
by  which  silver  was  no  longer  the  subject  of  free  coinage, 
as  it  had  scarcely  been  coined  at  all  since  1834.  When 
hard  money  began  to  come  into  circulation  again,  there  was 
considerable  agitation  in  favor  of  free  coinage  of  silver 
dollars,  and  in  opposition  to  the  retirement  of  the  green- 
backs. This  resulted  in  the  retention  of  the  latter,  intended 
at  the  first  to  be  used  only  during  the  war,  and  in  the  pas- 
sage of  what  was  known  as  the  Bland-Allison  Bill,  in  1878, 
making  it  obligatory  for  the  United  States  to  buy  and  coin 
at  least  two  million  dollars'  worth  of  silver  a  month.  In 
1890,  by  the  Sherman  Silver  Act,  Congress  authorized  the 
Treasurer  to  buy  at  least  four  and  a  half  million  ounces  of 
silver  a  month,  but  the  law  was  repealed  during  the  panic 
of  1893.  In  the  election  of  1896  the  chief  issue  was  the 
question  of  free  silver  coinage  alone  or  in  connection  with 
other  nations.  The  commercial  sections  of  the  country 
were  greatly  opposed  to  any  change  in  the  standard,  and 
a  consideration  of  free  silver  was  therefore  postponed. 

222.  The  People  and  the  State  Constitutions  (1860- 
1900).  —  Besides  the  changes  made  necessary  by  new  eco- 
nomic conditions,  the  state  constitutions  have  been  greatly 
developed  along  lines  similar  to  those  in  which  alterations 
were  made  before  i860.  The  most  notable  characteristic  is 
the  greater  part  played  by  the  people  in  government.  This 
expresses  itself  in  many  ways.  The  distrust  of  the  legis- 
latures has  become  even  more  prominent,  so  that  they  are 
prevented  in  many  cases  from  making  laws  at  all;  and  every 
time  a  state  adopts  a  new  constitution,  it  adds  a  few  things 
to  the  list  of  subjects  for  which  the  legislature  cannot 
make  special  laws.  In  many  states  this  restriction  covers 
at  least  fifty  titles.  All  of  these  things  mean,  of  course, 
that  the  people  insist  upon  having  more  of  the  laws  sub- 


The  New  Nation 


187 


mitted  to  them  for  approval.  The  constitutions  are  becom- 
ing more  and  more  like  codes  which  need  constant  revision. 

Many  of  the  states  have  gone  farther.  Not  only  must 
constitutional  amendments  be  submitted  to  the  voters,  but 
if  a  certain  per  cent  wish  to  have  a  law  voted  upon  by  the 
people  before  it  can  be  enforced,  the  legislature  in  those 
states  must  submit  the  law  at  the  next  general  election. 
This  method,  called  the  "referendum,"  was  first  used  in 
this  way  in  America  about  1845;  i*  '^^s  been  well  devel- 
oped in  the  cantons  of  Switzerland.  At  present  it  is  used 
most  in  the  localities  of  the  middle  West,  and  especially  in 
connection  with  matters  of  finance  or  local  organization. 
South  Dakota  has  recently  (1898)  applied  the  method  to 
all  state  laws  on  petition  of  five  per  cent  of  the  voters. 
She  also  permits  the  same  proportion  to  suggest  laws  which 
must  be  submitted  to  popular  vote.  This  is  called  the 
"initiative." 

223.  The  Suffrage.  —  Changes  in  the  franchise  have  been 
going  on  all  the  time.  In  one  way  they  have  helped  to 
restrict  the  right  to  vote,  in  another  to  enlarge  it.  The 
most  important  change  since  1865  was  that  caused  by  the 
fifteenth  amendment  to  the  United  States  Constitution, 
which  made  it  obligatory  upon  the  states  to  extend  the  suf- 
frage to  negroes.  But  the  evils  of  indiscriminate  exten- 
sion have  been  manifest  all  over  the  land;  and  many  of  the 
states  which  formerly  permitted  aliens  to  vote  as  soon  as 
they  declared  their  intention  to  become  citizens,  or  even 
before  that,  have  withdrawn  the  privilege,  though  ten  still 
permit  it.  Educational  qualifications  have  become  more 
common,  and,  of  late,  the  requirement  is  sometimes  made 
that  the  person  shall  not  only  read  or  write,  but  do  it  in 
English. 

In  the  South  the  whites  are  struggling  with  the  problem 
of  how  to  disfranchise  the  negroes  without  violating  the 
national  Constitution.  In  1890  Mississippi,  which  has  a 
population  over  one-half  black,  established  an  educational 
test  for  voters.     In  1895  South  Carolina,  in  which  the 


Direct 
legislation. 

hh  528.  sag- 


General 
changes. 

Haynes, 
Qualified^ 
tions  for 
Suffrage,  in 

z'.^.  c>.,xiii 

(1898),  495- 
5". 


New  quali- 
fications in 
the  South. 

Haynes, 
ibid. 


1 88 


The  American  Federal  State 


Oberholtzer, 
Referendum, 
iao-125. 


Woman 
suffrage. 


The  Austral- 
ian ballot 
and  other 
election 
regulations. 

cf.  $§  523- 

525- 


negroes  outnumber  the  whites  nearly  two  to  one,  adopted  a 
more  complicated  arrangement.  No  one  could  vote  unless 
he  held  property  or  could  read,  but  persons  who  could 
understand  a  part  of  the  Constitution  when  read  might  vote. 
Louisiana,  the  third  state  with  a  smaller  proportion  of 
whites  than  blacks,  went  even  farther  (1898).  A  constitu- 
tion (which  was  not  submitted  to  the  people  for  ratification) 
requires  the  alternative  property  or  educational  qualifica- 
tion, except  for  those  who  themselves  voted  or  whose  ances- 
tors voted  before  January  i,  1867,  and  for  aliens  naturalized 
before  the  constitution  went  into  effect.  The  Georgia 
legislature  (1899),  by  an  overwhelming  majority,  refused 
to  submit  a  similar  amendment.  North  Carolina  (1900) 
adopted  one  almost  identical  with  that  of  Louisiana,  except 
that  education  only  is  required. 

During  these  years  there  has  been  a  great  deal  of  agita- 
tion over  woman  suffrage.  A  great  many  constitutional 
amendments  have  been  submitted  to  the  voters,  but  in  most 
cases  they  have  been  defeated.  More  than  half  of  the  states 
allow  women  taxpayers  to  vote  in  certain  cases,  but  only 
four,  Wyoming,  Colorado,  Idaho,  and  Utah,  give  the  right 
for  state  and  national  elections. 

224.  Reform  of  Elections.  —  During  the  last  twenty  years 
a  very  earnest  attempt  has  been  made  to  avoid  some  of  the 
dangers  to  which  democracy  has  been  especially  subject. 
The  chief  of  these  reform  movements  dealt  either  with  the 
elections  or  the  civil  service.  The  open  ballot  of  the  for- 
ties was  replaced  by  one  much  more  guarded,  and,  finally, 
by  a  system  known  as  the  Australian  ballot,  by  which  the 
chances  of  bribery  and  corruption  have  been  reduced  to  a 
minimum.  Primary  elections  have  been  brought  under  the 
supervision  of  the  law,  and  an  effort  is  being  made  to  im- 
prove them.  Candidates  have  been  hedged  around  with 
restrictions,  and  are  often  compelled  to  render  account  of 
their  election  expenses.  But  so  far,  complete  success  has 
not  attended  the  control  of  elections  aside  from  the  actual 
voting. 


The  New  Nation 


189 


225.  Civil  Service  Reform.  —  From  what  has  already  been 
said,  and  from  what  we  know  about  the  "spoil  system,"  we 
can  readily  appreciate  how  much  harm  it  has  done  good 
government.  "Civil  service  reform  "  has  been  the  watch- 
word of  a  large  class  of  our  best  citizens,  who  have  given 
attention  to  politics.  The  national  administration  was  the 
first  attacked.  For  three  years,  under  Grant,  examinations 
were  required  of  a  few  officials,  but  real  progress  dates 
from  the  passage  of  the  Pendleton  Act,  in  1883.  Since 
that  time,  by  Congressional  legislation  or  executive  ordi- 
nance, about  forty  per  cent  of  the  nearly  two  hundred 
thousand  United  States  government  positions  have  been 
placed  on  the  classified  lists,  and  are  now  filled  according 
to  merit.  In  the  state,  county,  and  municipal  govern- 
ments the  same  principles  have  been  applied  to  some 
extent;  but  the  vast  majority  of  the  two  or  three  hundred 
thousand  appointees,  besides  those  in  schools,  have  no 
higher  qualifications  than  friendship  and  influence. 

226.  Cuba  and  the  United  States.  —  During  the  whole  of 
the  nineteenth  century  the  affairs  of  Cuba  and  the  United 
States  have  been  more  or  less  interwoven.  As  early  as  1825 
diplomatic  suggestions  of  our  government  had  an  indirect 
influence  upon  Spain's  retention  of  her  West  India  posses- 
sions. Twenty-three  years  later  the  Secretary  of  State 
offered  to  buy  Cuba  for  $100,000,000.  In  the  ten  years' 
revolution,  which  began  in  1868,  the  United  States  was 
called  upon  several  times  to  see  that  American  interests 
were  protected.  After  1878  investment  by  our  citizens 
had  increased  rapidly,  and  when  insurrection  broke  out 
again,  in  1895,  it  meant  great  loss  and  privation  to  many 
living  in  the  United  States.  This  condition  of  affairs, 
coupled  with  the  harsh  "  reconcentrado  "  policy  of  Weyler, 
led  Cleveland,  in  two  messages,  to  assume  a  bold  attitude, 
and,  after  urging  Spain  to  submit  the  dispute  to  arbitration, 
to  state  that  if  the  war  were  continued,  it  might  become 
necessary  for  the  United  States  to  interfere.  Feeling 
against  Spain  had  grown  very  strong  before  the  destruction 


Progress 
made  in  the 
nation,  the 
state,  and 
the  localities. 

Cf.  hh  345. 
499.  552- 


Relations 
during  nine- 
teenth cen- 
tury. 

Hart,  A.  B., 
in  Harper's, 
Vol.  97,  127- 
134- 


igo 


The  American  Federal  State 


The  treaty 
with  Spain 
(1898). 


The  Philip- 
pine rebel- 
lion. 


Difficulties 
and  impor- 
tance of 
colonial 
questions. 


of  the  Maine  (February,  1898)  and  the  report  of  the  com- 
mittee of  investigation  that  the  vessel  had  been  blown  up 
by  a  submarine  mine.  War  now  seemed  inevitable,  and, 
on  April  25,  1898,  Congress  declared  that  a  state  of  war 
existed  between  the  United  States  and  Spain.  Six  days 
before,  a  joint  resolution  had  been  passed  that  Cuba 
should  be  free  and  independent,  and  that  the  United 
States  should  not  interfere  with  government  by  her  own 
people. 

227.  Acquisitions  of  Territory. — During  the  war  Con- 
gress voted  to  annex  Hawaii,  which  had  thrown  off  her 
monarchical  government  in  1893,  and  had  sought  annexa- 
tion by  means  of  treaty.  When  hostilities  with  Spain 
ceased,  we  were  in  possession  of  Porto  Rico,  a  large  part 
of  Cuba,  and  the  territory  around  Manila.  In  the  negotia- 
tions we  sought  to  gain  Cuba  for  the  Cubans,  without  the 
Spanish-Cuban  debt,  and  Porto  Rico,  the  Philippines,  and 
some  smaller  islands  for  ourselves.  The  treaty,  in  its  final 
form,  conceded  everything  the  Americans  asked,  the  Span- 
ish rights  in  the  Philippines  being  ceded  for  ^20,000,000. 
The  ratification  of  the  treaty  met  with  opposition  in 
the  Senate,  from  those  who  feared  the  dangers  which  co- 
lonial possessions  so  far  away  would  bring;  but  the  nec- 
essary two-thirds  was  finally  forthcoming.  During  this 
debate  in  the  Senate  an  attempt  was  made  to  pledge 
the  nation  to  grant  the  Philippinos  complete  rights  of  self- 
government,  but  it  was  unsuccessful.  Meanwhile  the 
administration  had  been  dealing  with  the  double  problem 
of  crushing  the  Tagal  rebellion,  headed  by  Aguinaldo,  and 
of  finding  such  a  government  for  the  different  islands  in 
the  Philippines  and  for  the  West  Indies  as  should  secure 
the  civil  rights  of  the  inhabitants,  guarantee  protection  of 
property,  and  yet  leave  the  people  such  a  share  in  govern- 
ment as  they  seem  fitted  to  use. 

The  proper  control  of  these  colonies,  and  the  altered 
international  relations  which  the  possession  of  this  out- 
side territory  will  bring  us,  bid  fair  to  outrank,  in  popular 


The  New  Nation  1 91 

interest  and  in  real  importance,  all  other  questions  now 
confronting  the  national  government. 

228.  The  Constitution  at  the  End  of  a  Century.  —  What  A  century's 

a  difference  there  is  between  the  United  States  of  1789  and   ^}^'^^^\ '" 

■"  the  spirit  of 

that  of  to-day,  and  yet  what  a  similarity !     The  similarity  government. 

is  in  governmental  forms  and  political  theories;  the  differ-  -wrjison 

ence  in  the  spirit  which  animates  society  and  politics.    But  Cong.  Gov't, 

the  spirit  is  no  new  creation,  it  is  an  evolution  that  finds  '3~*'*' 

its  beginning  not  even  in  the  revolutionary  epoch,  but  in 

the  earliest  colonial  settlements. 

In  1789  we  had  a  federal  system  nominally  the  same  as  Changes  in 

it  is  now:  but  then  we  had  States  and  a  nation,  now  there  *^^  federal 

system. 

is  a  Nation  and  states.  Then  all  spoke  of  the  states  as 
sovereign,  and  of  the  central  government  as  sovereign  only 
in  regard  to  the  powers  conferred  upon  it.  A  hundred 
years  ago  the  right  of  secession  was  practically  claimed  by 
every  section;  to-day  no  state  would  dare  to  attempt  to  call 
withdrawal  from  the  Union  legal  secession.  In  the  early 
years  of  our  history  much  was  heard  about  nullification,  but 
our  present  interest  in  the  word  is  purely  historical.  What- 
ever we  may  think  about  the  permanence  of  the  states,  one 
thing  is  assured:  the  Union  will  stand,  growing  stronger 
with  the  onward  march  of  the  centuries. 

229.  The  Central  Government.  —  The    contrast  between  The  national 
the  United  States  government  in  1789  and  in  1900  is  most  government 
striking.     In   1789   none  of   the   three   departments   had 

tested  its  strength,  and  none  knew  whether  it  would  prove  ^^^'  ^  ~ 
able  to  perform  the  tasks  assigned  it.    Few  people  expected 
to  see  the  old  Confederation,  with  its  lack  of  power,  its    cong.  Gov't, 
failure  to  inspire  respect,  its  impaired  credit,  and  its  over-   28-57. 
whelming  debt,  replaced  by  a  new  government  that  should 
show  itself   competent  just  where   the  old  Congress  was 
inefficient.     To  the  people  of  that  day  the  central  govern- 
ment was  far  removed,  a  vague  impersonal  being  much  more 
of  a  necessary  evil  than  a  permanent  good;  and,  if  too 
powerful,  an  engine  for  the  destruction  of  liberty.    That  it 
did  not  inspire  awe,  perhaps  not  respect,  is  evident  from 


192 


The  American  Federal  State 


Its  position 
to-day. 


The  separa- 
tion of 
departments 
maintained. 


Some 

characteris- 
tics of  the 
unwritten 
Constitution. 

Bryce,  271- 
274. 


the  events  connected  with  the  first  Congress  and  the  first 
inauguration.  We  cannot  imagine  to-day  a  meeting  of 
Congress  called  for  the  4th  of  March  which  does  not  take 
place  until  the  6th  of  April,  because  no  quorum  is  present; 
nor  can  we  think  of  an  inauguration  postponed  eight  weeks 
beyond  the  day  set.  For  such  a  state  of  affairs  poor  roads 
and  adverse  winds  cannot  be  held  responsible  by  the  most 
charitable  historian. 

The  fears  which  the  people  had  of  the  Congress  and  the 
President,  as  well  as  the  dangers  of  impotent  government, 
were  not  overcome  in  a  day.  But  the  ship  of  state  has 
gallantly  weathered  every  storm.  It  has  shown  its  own 
strength  and  won  the  confidence  of  its  citizens.  We  do 
not  dread  it  more  than  the  other  governments  under  which 
we  live,  and  our  attachment  to  it  to-day  is  more  real  and 
pronounced. 

In  this  development  a  great  many  provisions  of  the  paper 
constitution  have  been  ignored  or  supplemented  by  law 
and  custom,  yet  we  still  find  that  the  separation  into  three 
departiTients,  largely  independent,  is  no  fiction.  The  legis- 
lative department  is  necessarily  the  most  powerful,  as  it 
has  the  most  important  work  to  do;  but  it  has  never  subor- 
dinated the  others  entirely  to  itself.  Each  has  maintained 
a  position  essentially  that  which  the  "  fathers  "  expected. 

230.  The  Unwritten  Constitution.  —  We  have  already  in- 
dicated how  the  federalism  recognized  by  the  Constitution 
has  been  modified,  but  several  changes  of  great  significance, 
though  more  specific,  deserve  mention.  The  most  impor- 
tant characteristic  is  the  general  tendency  toward  a  liberal 
construction  of  the  written  Constitution,  covering  such  sub- 
jects as  the  acquisition  of  territory,  the  making  of  inter- 
nal improvements,  and  the  issuing  of  paper  money,  none 
of  which  are  authorized  in  that  document.  Since  1800 
the  President  has  not  been  chosen  by  electors  exercising 
independent  judgment,  but  by  persons  representing  politi- 
cal parties,  and  now  chosen  by  the  qualified  voters  of  each 
state.     They  do  no  more  than  register  the  wishes  of  the 


The  New  Nation  1 93 

majority  of  those  voters.  A  President  may  be  reelected 
once,  but  not  twice.  His  power  in  time  of  war  is  all  that 
the  most  visionary  opponent  of  constitutional  ratification 
may  have  imagined.  The  executive  power  is  centred  in 
him,  i.e.  all  persons  belonging  to  the  administration  are 
nominally  appointed  by  him,  and  are  really  responsible  to 
him.  But  in  his  appointments  he  is  obliged,  by  custom, 
to  follow  the  dictates  of  congressmen  in  filling  most  of  the 
ofifices  in  the  United  States,  though  the  Senate  never  refuses 
to  confirm  a  member  of  the  Cabinet.  The  Cabinet  is  a 
body  practically  unrecognized  by  the  Constitution.  Cus- 
tom has  determined  that  it  shall  be  composed  of  the  heads 
of  the  departments,  who  have  no  seats  in  Congress  and  do 
not  direct  legislation,  as  in  England.  As  a  Cabinet,  they 
are  an  advisory  executive  body,  but  the  President  is  not 
bound  to  follow  their  advice;  as  heads  of  departments,  they 
are  the  administrative  agents  of  the  President. 

Our  government  has  become  one  by  the  people  acting  The  political 
through  political  parties.     The  President  is  a  party  leader,   f^c^/^rlnthe 
Senators  and  representatives  belong  to  some  national  party  government 
nominated  according  to  well-recognized  rules.    The  speaker  °^  *^*  United 
of  the  House  of  Representatives,  an  officer  barely  mentioned 
in  the  Constitution,  has  developed  tremendous  power  over 
the  organization  and  legislation  in  the  House  because  he 
is  the  party  leader  of  the  majority.     Only  the  courts  are 
free  from  partisanship,  and  that  is  because  they  have  vol- 
untarily and  consistently  refrained  from  considering  politi- 
cal questions  as  such.     Yet  even  the  judges  always  belong 
to  the  same  party  as  the  President  who  appointed  them. 
In  the  states  and  the  cities,  the  organization  of  the  party 
machinery  needed  for  national  elections  has  made  it  neces- 
sary to  fight  out  every  contest  on  party  lines. 

These  are  a  few  of  the  changes  wrought  in  the  national 
government  by  the  unwritten  Constitution. 

231.   Popular  Cooperation  in  Government.  —  In  1789  the  Class  rule 
United  States  was  governed  by  classes.     People  could  not  '"  eighteenth 
vote  unless  they  owned  a  certain  amount  of  property  and 


194  The  American  Federal  State 

had  been  for  a  long  time  residents  of  the  state  and  district. 
Officials  were  by  law  usually  required  to  own  a  much  greater 
amount  of  property,  and  by  custom  they  were  ordinarily 
drawn  from  certain  families.  Except  in  the  New  England 
township,  the  local  government  was  by  no  means  popular, 
for  elsewhere  the  town,  parish,  and  county  officers  were 
either  appointed  by  the  state  governments  or  chosen  by  a 
few  persons. 
Lack  of  To-day   suffrage    is    everywhere    practically   universal, 

suffrage  Religious  qualifications  were   long  ago  abolished,   when 

at  present.  State  and  Church  were  separated,  but  the  nation  has  become 
more  rather  than  less  religious.  The  few  restrictions  of 
time,  residence,  and  citizenship  for  electors  are  essentials 
of  good  government.  Office-holding  is  open  to  any  one 
who  has  the  personal  qualities  needed  for  winning  popular 
favor.  All  of  the  chief  positions  in  national,  state,  and 
local  governments  are  filled  by  popular  election,  and  changes 
in  fundamental  laws  must  meet  with  approval  of  the  voters. 
The  people  cooperate  in  government  largely  through  par- 
ties, but  the  control  of  those  parties  belongs  to  them;  for 
no  one  that  seeks  to  become  a  party  dictator  or  "boss  "  can 
maintain  his  position  in  the  long  run  without  popular  sup- 
port. We  have  now  as  truly  a  government  "of  the  people, 
by  the  people,  and  for  the  people  "  as  ever  existed,  with 
most  of  the  benefits  and  most  of  the  faults  inherent  in 
democratic  rule. 

What  that  government  is  like  we  shall  now  proceed  to 
consider  a  little  more  fully. 


Economic  Featttres  of  the  New  Nation  (§§  215-221) 

1.  Look  up  the  income  taxes  and  taxes  on  production  during  the 
Civil  War;  note  the  items  included  and  rates  levied.  Why  was  there 
a  great  opposition  to  these  internal  taxes  ?  Should  the  duties  on  im- 
ports have  been  reduced  at  once  to  correspond  to  the  reduction  on 
internal  revenue  ? 

2.  Why  are  monopolies  dangerous  ?  Name  any  railways  that 
might  be  considered  monopolies.  Are  the  evils  of  monopolistic  con- 
trol averted  in  these  cases  by  government  control  ? 


The  New  Nation  195 

3.  How  is  a  corporation  formed  in  your  state  ?  Are  there  any  pro- 
visions in  state  law  that  the  capital  stock  must  be  paid  up  in  full  ? 
What  is  meant  by  watered  stock  ?  Why  may  watered  stock  be  in- 
jurious to  the  investor,  to  the  corporation,  and  to  the  public  ? 

4.  Give,  in  outline,  a  history  of  our  tariffs,  indicating  the  principal 
objects  upon  which  duties  have  been  placed,  and  giving  an  idea  of  the 
rates. 

The  States  (§§  222-225) 

1.  WTiat  is  the  earliest  instance  you  recall  of  the  referendum  in 
America  ?  Give  a  short  account  of  the  development  of  the  idea  that 
the  people  should  ratify  laws  framed  by  legislatures  or  conventions. 
Has  the  referendum  ever  been  used  in  connection  with  national 
affairs  ?    Account  for  your  last  answer. 

2.  What  are  the  advantages  of  universal  suffrage  ?  the  disadvan- 
tages ?  Is  the  suffrage  of  the  present  likely  to  become  more  or  less 
restricted  ?  In  your  opinion  does  the  Louisiana  constitution  violate 
the  United  States  Constitution  ?  Who  will  decide  whether  it  does, 
and  in  what  way  will  the  matter  be  tested  ?  Give  arguments  for  and 
against  woman  suffrage. 

3.  Give  a  history  of  the  ballot.  To  what  extent  was  it  Jised  in  the 
colonies  ?  What  was  the  method  of  voting  in  Greece,  in  Rome,  in 
England  before  1884  ? 

Foreign  Afisdrs  (§§  226-227) 

a,  Cuba  and  the  United  States  during  the  nineteenth  century. 
Curtis,  United  States  and  Other  Powers,  index  under  Cuba ;  La- 
tane.  United  States  and  Spanish  America,  chap.  II;  Callahan,  Cuba 
and  International  Relations. 

1.  Make  a  study  of  the  Spanish  government  in  Cuba  during  the 
nineteenth  century.  What  forms  of  taxation  existed  ?  What  share 
did  the  people  have  in  the  government  ?  In  what  respects  was  the 
government  of  Cuba  better  or  worse  than  those  of  the  South  American 
republics  ? 

2.  Name  the  principal  causes  of  the  Spanish  War.  Trace,  if  possi- 
ble, the  growth  of  the  idea  of  expansion.  Was  it  originally  the  wish 
of  the  people  or  of  the  administration  ?  What  else  could  the  govern- 
ment have  done  ? 

The  Constitution  at  the  End  of  a  Century  (§§  228-231) 

a.  Changes  in  the  Constitution  since  1 789  are  treated  by  McMaster, 
With  the  Fathers,  182-221;   Bout  well.  Constitution  at  the  End  of  the 


196  The  American  Federal  State 

First  Century ;  and  Tiedeman,  Unwritten  Constitution  of  the  United 
Stales. 

b.  The  national  government  of  to-day  is  pictured  by  Bryce,  chaps. 
IV,  V,  IX,  XI-XIII,  XVII-XXI,  and  by  Ford,  American  Politics, 
chaps.  XVIII-XXII. 

1.  Compare  the  forms  of  government,  the  powers  of  the  different 
departments,  and  the  part  played  by  the  people  in  governing  in  Great 
Britain  and  the  United  States  in  1800  and  in  1900. 

2.  Is  our  unwritten  Constitution  more  or  less  important  than  the 
written  one  ?  How  did  the  two  compare  in  1789  .'  Which  is  growing 
more  rapidly  ? 

3.  Is  it  desirable  to  keep  the  three  departments  of  government  as 
nearly  coordinate  as  we  can  ?  Is  it  going  to  be  possible  to  do  so  ? 
What  besides  provisions  of  the  written  Constitution  have  helped  to 
keep  the  executive  and  judicial  departments  independent  of  Congress  ? 


PART  II 
GOVERNMENT 

CHAPTER  X 

GENERAL  CHARACTER  OF  AMERICAN  FEDERALISM 
General  References 

Burgess,   The  American  Commonwealth  {Political  Science  Quarterly, 

I.  9-35)- 

Crane  and  Moses,  Politics,  223-264.  On  the  tendencies  of  feder- 
alism. 

Hinsdale,  The  American  Government^  1 17-136,  236-247,  336-371, 
418-422.  Hinsdale  gives  excellent  explanations  of  the  principal 
features  of  the  national  government  especially,  with  many  his- 
torical references. 

Bryce,  The  American  Commonwealth  (abd.  ed.),  214-287.  The  best 
book  for  consultation  on  this  chapter.  Unexcelled  for  reference 
on  all  of  Book  II.  Emphasis  is  laid  on  the  government  as  it  is 
and  upon  the  methods  of  operation. 

Wilson,  The  State,  467-550.  An  outline  of  particular  value  on  the 
states. 

Story  (Cooley),  Commentaries  on  the  Constitution,  chaps.  XXXII- 
XXXV,  XLIV-XLVII. 

The  Federalist,  Nos.  39-46.  The  Federalist  should  be  consulted  on 
all  of  Book  II  as  showing  what  was  expected  of  the  central  gov- 
ernment in  1788. 

Burgess,  Political  Science  and  Comparative  Constitutional  Law,  I, 
142-154,  184-252.  Volume  II  gives  a  very  valuable  comparative 
study  of  the  governmental  organization  and  powers  in  the  United 
States,  France,  England,  and  Germany. 

Hart,  Federal  Government.  Summarizes  and  compares  different  fed- 
eral governments.  Appendix  A  gives  detailed  comparison.  In- 
valuable for  reference. 

197 


198 


The  American  Federal  State 


Ways  in 
which  mod- 
ern States 
have  been 
consolidated. 


The  decen- 
tralizing 
forces  over- 
come. 

Johnston,  in 
Lalor,  III, 
787,  788. 


232.  Centralizing  Tendencies  in  Modern  History.  —  All 
modern  States  have  a  central  government  and  local  govern- 
ments. In  some,  the  local  governments  are  subordinate  to 
the  central  government,  and  we  then  called  the  State  cen- 
tralized. In  others,  the  local  governments  are  practically 
independent  of  the  central  governments,  i.e.  neither  one 
is  controlled  by  the  other,  but  each  is  directly  responsible 
to  the  people.  Most  States  at  the  present  time  are  central- 
ized, but  they  have  not  always  been  so.  Almost  without 
exception  the  local  districts  whose  government  is  now 
completely  under  the  central  government  were  once  more 
or  less  independent,  as  were  the  counties  of  Kent  and  Wes- 
sex  in  England,  or  Venice  and  Modena  in  Italy.  But  this 
independence  was  not  lost  all  at  once.  The  process  by 
which  these  little  states  were  united  into  large  States  was 
a  slow  one,  often  covering  centuries.  The  unions  have 
been  largely  voluntary,  but  they  may  have  been  entirely 
involuntary.  The  small  states  usually  at  first  retained  many 
privileges,  as  evidence  of  their  former  independent  position, 
especially  if  they  were  consulted  when  they  were  joined 
to  the  large  State.  In  many  instances  several  small  states 
united  in  a  loose  bond,  or  league,  for  protection  against 
common  danger.  But  these  leagues  have  been  transitory. 
Although  the  people  were  more  attached  to  the  small  states 
than  to  the  league,  and  although  the  small  states  at  the 
beginning  had  more  power  than  the  central  government, 
forces  favoring  decentralization  have  been  no  match  for 
those  in  the  opposite  direction,  and  in  time  centralization 
has  won,  a  large  State  has  been  formed,  and  the  central 
government  has  grown  stronger  and  stronger. 

233.  Centralization  in  the  United  States  before  1790.  — 
The  history  of  the  struggle  between  centralizing  and  decen- 
tralizing forces  in  this  country  has  already  been  discussed 
under  the  development  of  nationality.  As  elsewhere,  the 
small  states  were  formed  before  the  large  one  was  organ- 
ized. During  the  colonial  period  these  small  political 
societies  were  unconnected  with  each  other,  except  through 


General  Character  of  American  Federalism     199 

England.  Their  first  union  (the  Confederation)  was  a 
league  in  which  the  states  controlled  the  central  govern- 
ment. This  did  not  prove  to  be  satisfactory,  and  after  an 
existence  of  less  than  ten  years  an  effort  was  made  to  replace 
it.  Now,  it  was  unreasonable  to  expect  that  a  nation  with 
a  strong  central  government  would  be  developed  in  a  single 
decade,  particularly  when  we  consider  how  strong  was  the 
love  of  local  self-government  in  America.  In  consequence, 
as  a  league  had  been  found  unsatisfactory,  and  as  popular 
sentiment  was  strongly  opposed  to  a  powerful  central  gov- 
ernment, a  compromise  was  necessary.  There  was,  accord- 
ingly, formed  a  Federal  State,  in  which  there  should  be 
two  kinds  of  government,  each  exercising  certain  powers 
of  sovereignty,  and  supreme  within  its  own  sphere.  But 
the  creation  of  this  Federal  State  meant  that  every  citizen 
living  within  the  United  States  was  not  only  a  citizen  of 
the  state  (commonwealth)  in  which  he  resided,  but  of  the 
United  States  as  well.  He  was  bound  to  obey  the  laws  of 
his  state  with  regard  to  certain  matters,  and  those  of  the 
United  States  with  regard  to  certain  others.  He  had  cer- 
tain rights  which  he  possessed  because  he  was  a  citizen  of 
a  state,  but  different  rights  which  were  the  result  of  United 
States  citizenship. 

234.   Centralization  since  1790.  —  If  States  are  constantly   integration 
growing,  and  if  growth  has  everywhere  else  favored  cen-   of  national 
tralization,  we  may  well  ask  whether  the  Federal  State  of 
to-day  is  the  same  as  that  of  1790.     The  answer  is  clear  if  ^^^  Moses 
we  have  followed  the  historical  discussion  of  Part  I.    Theo-  Politics. 
retically,  the  Federal  State  has  changed  little.     Actually,   chap.xviii. 
there  has  been  a  great  shifting  of  power.     The  balance 
between  the  nation  and  the  states  has  never  been  perfectly 
maintained.     At  first  the  states  were  much  more  impor- 
tant, because  of  their  former  semi-independent  position. 
But  new  generations  came  upon  the  scene,  who  cared  less 
for  the  history  of  their  state  than  for  the  common  interests 
which  existed  in  their  day.     Gradually  the  central  govern- 
ment has  added  power  after  power,  not  necessarily  at  the 


200 


The  American  Federal  State 


The  national 
Constitution 
and  centrali- 
zation. 


Fair  national 
efficiency 
combined 
with  local 
autonomy. 

Sidgwick, 
Politics,  516- 
519. 

Bryce,  248- 
253. 


expense  of  the  states,  for  the  Constitution  has  guaranteed 
the  states  full  control  within  their  own  sphere  of  govern- 
ment, but  because  the  nation  and  national  interests  are 
now  much  more  important  than  the  state  and  local  affairs. 
Really,  the  states  have  been  growing  all  the  time,  but  the 
nation  has  grown  so  much  more  rapidly  that  when  we 
compare  the  two,  the  states  seem  to  have  dwindled. 

In  this  connection  a  word  ought  to  be  said  about  the 
national  written  Constitution,  which,  in  a  sense,  created 
this  Federal  State,  and  which  has  been,  more  than  anything 
else,  responsible  for  its  continuance.  How  perfect  the 
division  was  which  the  Constitution  made  when  it  sepa- 
rated the  sphere  of  the  nation  from  that  of  the  states  is 
shown  by  the  fact  that  the  division  is  now  almost  the  same 
as  a  hundred  years  ago,  in  spite  of  the  great  political, 
social,  and  economic  changes  of  the  century.  This  divi- 
sion was  at  the  beginning  an  advantage  to  the  central  gov- 
ernment, because  the  states  were  unwilling  to  leave  to  the 
United  States  government  control  over  all  national  affairs. 
During  the  last  half  century  the  division  has  favored  the 
states  in  two  ways:  (i)  because  we  have  at  present  more 
interests  in  common  than  a  hundred  years  ago,  and  occasion- 
ally these  interests  are  of  such  a  nature  that  the  Constitution 
leaves  them  to  the  states,  although  we  feel  now  that  they 
properly  belong  to  Congress.  (2)  As  the  national  govern- 
ment has  grown  stronger,  it  would  have  encroached  upon 
the  sphere  of  the  states  but  for  the  written  Constitution. 

235.  Negative  Advantages  of  Federal  States.  — The  great 
advantage  of  federalism  is  that  it  combines  an  efficient 
central  government,  controlling  those  matters  of  unques- 
tioned common  interest  with  complete  self-government  in 
the  states  regarding  all  other  subjects.  It  would  be  almost 
impossible,  if  indeed  it  were  desirable  in  a  country  so  ex- 
tensive as  ours,  to  give  the  national  government  the  right 
to  regulate  all  affairs,  general  and  local.  If  laws  had  to  be 
made  for  localities,  as  is  done  in  England  and  in  France, 
especially  if  accompanied  by  the  administrative  centraliza- 


General  Character  of  American  Federalism     201 

tion  of  the  latter  country,  the  burden  would  be  greater  than 

the  national  government  could  probably  bear.     But  even 

if  a  centralized  government  were  possible,  it  could  not 

properly  care  for  the  interests  of  every  locality;  and,  more 

than  all  else,  it  would  leave  to  the  people  a  smaller  degree 

of  local  self-government,  which  has  always  been  the  most 

effective  spur  to  political  interest,  and  the  great  bulwark  of 

political  and  civil  freedom. 

One  of  the  great  faults  of  federal  systems  in  general  is  Dangers  of 

that  they  tend  to  break  up  into  sections.     Under  a  central   secession 

avoided, 
government  exercising  powers  now  belonging  to  the  states, 

there  would  be  much  greater  disaffection  in  different  parts 
of  the  Union  than  under  the  existing  system,  and  the  danger 
of  actual  separation  —  for  legal  secession  is  no  longer  pos- 
sible —  would  be  much  greater  than  at  present.  Again,  if 
national  laws  were  to  be  made  for  subjects  that  are  now 
under  the  control  of  the  states,  our  own  history  and  the 
history  of  Europe  show  that  to  have  good  government  under 
those  laws  they  should  be  administered  by  national  officials. 
While  the  choice  of  these  might  be  left  to  the  people  of  a 
locality,  the  officials  would  have  to  be  responsible  not 
to  that  locality,  but  to  the  central  government.  To  call 
such  a  system  local  self-government,  would  be  hardly  less 
than  farcical. 

236.   Positive  Advantages  of  Federalism. — The  advan-  civic  advan- 
tages of  a   federal   system  are,   of   course,   more  clearly  'agesof.ocai 
shown  in  the  gains  we  have  made  than  in  the  dangers  we 
have  avoided.    Such  governments  as  we  possess  at  the  pres-  ^.j,^^  ^j^J^J. 
ent  time  demand  a  great  amount  of  political  intelligence,   racy  in 
and  have  produced  a  degree  of  popular  knowledge  regard-  ^c'^l^'^n's 
ing  political  affairs  among  our  citizens  that  is  the  surest  ed.). 
guarantee  that  popular  government  will  be  good  govern-   '« io7-"«' 
ment.     This  is  a  direct  result  of  leaving  to  the  state  com- 
plete autonomy,  for  the  part  played  by  the  voting  citizen 
in  the  conduct  of  state  and  local  affairs  is  incomparably 
greater  than   that   taken   by  a  citizen   of   any   European 
country  in  all  of  his  governments. 


202  The  American  Federal  State 

Political  But  aside  from  the  advantage  derived  through  the  greater 

and^experi^  political  intelligence  of  the  voter,  is  the  gain  that  has  come 
ence  of  the  from  the  experiments  made  by  the  states  in  new  fields, 
states,  'j'jjg  national  progress  that  has  come  from  innovations, 

tried  by  a  few  states,  found  satisfactory,  and  afterward 
adopted  by  the  other  states,  can  hardly  be  estimated.  It 
is  sufficient  for  our  purpose  to  compare  the  actual  exten- 
The suflfrage.  sion  of  the  franchise  with  what  would  have  been  possible 
had  suffrage  been  regulated  by  national  law,  bearing  in 
mind  that  it  is  illustrative  of  a  hundred  and  one  other  sub- 
jects of  more  or  less  importance.  From  the  historical 
sketch  of  Part  I  it  must  be  evident  that  if  the  states  could 
have  made  no  laws  regarding  the  franchise,  many  of  the 
reasons  that  led  the  newer  states  to  adopt  manhood  suffrage, 
even  during  the  eighteenth  century,  would  have  had  no 
influence  whatever.  The  West  adopted  universal  suffrage, 
principally  because  greater  social  equality  existed  there 
than  in  the  East,  and  political  equality  was  therefore 
natural.  Then  the  West  was  anxious  to  aid  in  the  devel- 
opment of  its  resources  by  attracting  immigrants  from  the 
other  states  and  from  Europe,  and  the  right  to  vote  proved 
a  very  great  inducement.  The  East  was,  consequently, 
obliged  to  grant  similar  privileges.  Now,  if  the  franchise 
had  been  regulated  by  national  law,  the  older  states  would 
have  compelled  the  central  government  to  base  suffrage  on 
property.  The  social  equality  of  the  West  could  have 
exerted  no  influence  till  the  West  was  as  populous  as  the 
East,  and  population  in  that  section  would  have  increased 
less  rapidly  than  it  did,  because  the  West  could  not  have 
offered  the  right  to  vote  as  a  bid  to  newcomers.  When 
we  realize  that  as  late  as  1840  more  than  one-half  the  people 
of  the  United  States  actually  resided  in  the  thirteen  origi- 
nal states,  we  can  realize  the  significance  of  this.  We  must 
not  forget,  however,  that  even  the  old  states  would  un- 
doubtedly, in  time,  have  agreed  to  a  modification  of  the 
suffrage,  especially  as  agitation  in  the  newer  states  would 
have  favored  its  extension;  but  these  changes  must  have 


General  Character  of  American  Federalism     203 


occurred  much  later  than  they  did  even  in  the  East.  From 
this  single  instance  we  can  see  the  tremendous  influence 
exerted  upon  political  and  social  progress  by  the  federal 
system. 

237.  Disadvantages  of  our  Federal  System.  —  The  disad- 
vantages of  our  system  are  inseparable  from  the  advantages. 
It  is  impossible  to  separate  the  powers  of  government  into 
two  sets,  and  distribute  those  powers  to  different  govern- 
ments, and  yet  have  a  central  government  as  efficient  in 
the  conduct  of  all  national  affairs  as  a  highly  centralized 
national  government  would  be.  For  example,  a  state  may 
greatly  restrict  the  privileges  of  the  citizens  within  its 
boundaries,  and  yet  the  United  States  government  cannot 
interfere  unless  the  state  has  infringed  upon  the  rights  which 
the  citizen  has  by  virtue  of  his  being  a  citizen  of  the  United 
States,  or  unless  the  state  took  away  his  rights  as  a  citizen 
of  that  state  "without  due  process  of  law." 

When  the  United  States  government  makes  a  treaty  with 
a  foreign  power,  it  is  quite  likely  that  some  matters  which 
seem  to  belong  to  state  law  will  be  considered.  We  are 
under  obligations  to  the  nation  with  which  the  treaty  is 
made  to  see  that  the  treaty  is  enforced;  but  if  the  United 
States  authorities  try  to  administer  these  parts  of  the  treaty, 
they  are  thought  to  exceed  their  powers;  so  it  is  left  to  the 
state  officials,  who  execute  them  or  not  as  they  see  fit.  In 
the  New  Orleans  difficulty  (1891),  where  several  citizens 
of  Italy  were  killed  by  a  mob,  the  Italian  government  was 
informed  that  the  murderers  must  be  punished  by  the  state 
of  Louisiana,  and  that  the  United  States  had  no  jurisdic- 
tion in  the  matter;  and  this  was  done,  when  we  had  a  treaty 
with  Italy  guaranteeing  the  rights  of  her  citizens  in  this 
country,  and  in  spite  of  the  provision  of  our  Constitution 
which  makes  treaties  part  of  the  supreme  law  of  the  land. 

Probably  the  greatest  disadvantage  is  that  growing  out 
of  our  continually  changing  economic  and  political  con- 
ditions. We  cannot  draw  between  the  state  and  national 
spheres  of  government  a  line   that  will  be  permanent. 


Inequalities 
in  civil  rights 
among  the 
states. 

Cf.  Bryce, 
243-247. 


Weakness  of 
the  national 
government. 


Increasing 
need  of 
uniform 
legislation. 


204 


The  American  Federal  State 


Enumerated 
and  residu- 
ary powers. 

Hinsdale, 
§§  225-233. 

Bryce,  225- 
232. 


Owing  to  the  rigidity  of  the  national  Constitution,  it  is 
impossible  to  change  the  line  with  changing  conditions. 
The  liberal  construction  of  the  Constitution  does  this  to 
some  extent,  but  within  certain  limits.  The  central  gov- 
ernment has  been  powerless  to  enact  a  national  divorce  law, 
although  the  need  of  uniform  legislation  of  this  subject  is 
fully  recognized.  At  the  present  time,  commissions  from 
different  states  are  constantly  being  held  in  order  to  arrange 
some  plan  by  which  the  differences  between  the  legislation 
of  the  states  may  be  minimized.  Were  it  not  for  the  fact 
that  the  general  principles  underlying  state  laws  are  every- 
where the  same,  and  that  there  are  but  four  or  five  groups 
of  states  with  any  great  differences  in  detail,  some  action 
by  an  outside  authority  would  be  necessary  for  the  proper 
conduct  of  ordinary  business.  In  other  words,  if  state 
lines  are  not  prominent  in  everyday  affairs,  they  must  not 
mark  important  boundaries  of  legal  systems,  or  they  will 
have  to  be  removed. 

238.  General  Distribution  of  Powers.  —  After  this  con- 
sideration of  the  general  characteristics  of  centralization 
and  federalism  in  this  country,  let  us  proceed  to  go  a  little 
more  into  detail,  in  order  to  discover  just  what  part  of  the 
work  of  governing  is  left  by  the  people  of  the  American 
Federal  State  to  the  national  government,  and  what  part  to 
the  state  governments,  with  the  limitations  placed  upon 
each.  We  find  that  the  national  Constitution  of  1787  and 
its  amendments  define  pretty  clearly  the  sphere  of  the 
national  government,  and  suggest  the  sphere  of  government 
left  to  the  states.  In  that  instrument,  the  attempt  is  made 
to  grant  the  central  government  all  powers  that  the  states 
could  not  satisfactorily  exercise,  because  united  action  was 
necessary.  From  the  nature  of  the  case,  these  powers 
belonging  to  the  United  States  government  were  consid- 
ered delegated^  and  were  therefore  enumerated^  while  those 
left  to  the  states  were  to  include  all  others.  The  latter 
are  sometimes  spoken  of  as  residuary  or  inherent  powers. 
This  does  not  mean,   as  many  have  interpreted  it,   that 


General  Character  of  American  Federalism     205 

because  the  state  possessed  all  powers  not  delegated,  that 
the  state  was  therefore  sovereign.  It  would  have  been 
unwise,  if  not  impossible,  to  enumerate  all  the  powers  of 
both  state  and  national  governments;  and  the  much  simpler 
plan  was  adopted  of  stating,  in  general  terms,  those  classes 
of  powers  to  be  exercised  by  the  national  government. 

We  may  therefore  distinguish  the  following  classes  of  Classes  of 
governmental  powers :  —  powers. 

I.  Those  granted  exclusively  to  the  national  government 
by  the  Constitution  of  the  United  States. 

II.  Those  reserved  exclusively  to  the  states. 

III.  Those  powers  exercised  by  either  the  nation  or  the 
states,  usually  called  concurrent. 

IV.  Powers  denied  to  the  national  government  by  the 
Constitution. 

V.  Powers  denied  to  the  states  by  the  national  Consti- 
tution, or  to  any  particular  state  government,  by  the 
constitution  of  that  state. 

239.  Sphere  of  National  Government.  —  The  sphere  of  Expressed 
national  government,  in  consequence,  includes  both  exclu-  ^"'^  implied 
sive  and  concurrent  powers;  but  these  are  always  delegated. 
Yet  delegated  powers  may  be  either  expressed  or  implied 
powers.  No  one  nowadays  denies  that  the  United  States 
government  has  the  right  to  supplement  the  powers  ex- 
pressly stated  in  the  Constitution,  by  such  means  as  are  rea- 
sonable and  wise,  to  carry  out  these  powers.  That  is,  we  are, 
in  practice,  broad  constructionists  of  the  phrase  that  Con- 
gress has  the  power  "  to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers  [Constitution,  Article  I,  Section  VIII,  1-17], 
and  all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States  or  in  any  department  or 
officer  thereof." 

Nevertheless,  it  is  generally  admitted  that  the  United   Exclusive 
States  government  does  not  have  exclusive  powers,  unless  po*^"^- 
the  Constitution  expressly  states  that  the  power  granted  to 
the  United  States  government  is  exclusive,   or  unless  a 


206 


The  American  Federal  State 


Concurrent 
powers. 


Powers 
delegated 
by  the 
Constitution. 

Hinsdale, 
hh  341-418- 


power  given  the  United  States  government  is,  at  the  same 
time,  denied  to  the  states,  or  unless,  from  the  very  nature 
of  the  power,  it  could  not  be  exercised  by  both  the  nation 
and  the  states. 

The  powers  are  concurrent  if  they  are  simply  granted  to 
the  United  States  government  without  being  denied  to  the 
states. 

240.  Powers  exercised  by  the  United  States  Government. 
—  In  order  that  the  central  government  might  be  capa- 
ble of  maintaining  an  independent  existence,  it  was  given 
power  to  collect  taxes  of  different  kinds,  almost  without 
conditions.  That  crises  might  be  met  for  which  ordinary 
revenue  is  insufificient,  power  to  borrow  money  was  con- 
ferred. All  care  of  international  relations  was  given  the 
United  States  government,  and  these  powers  were  denied 
to  the  states  in  order  that  we  should  not  be  "  one  nation 
to-day  and  thirteen  to-morrow."  These  included  the  right 
to  send  and  receive  ambassadors,  make  treaties,  regulate 
foreign  commerce,  declare  war,  and  protect  our  interests 
by  raising  an  army  and  navy.  All  commercial  interests 
not  belonging  to  a  single  state  were  intrusted  to  the  cen- 
tral government.  Among  these  were  the  regulation  of 
interstate  commerce,  making  uniform  such  necessities 
as  coin,  weights  and  measures,  and  action  regarding  bank- 
rupts. Domestic  peace  was  assured  by  the  control  of  the 
army  and  by  the  organization  and  use  of  the  militia  to 
execute  laws  of  the  Union,  to  suppress  insurrections,  and 
to  repel  invasions.  Provisions  were  made  for  the  punish- 
ment of  crimes  against  the  United  States,  or  any  of  its  laws, 
and  for  the  proper  enforcement  of  United  States  authority 
without  the  use  of  military  power. 

Territory  may  be  acquired  and  governed,  while  the  con- 
ditions under  which  new  states  may  be  admitted  to  the 
Union  are  under  national  control.  In  order  that  these 
powers  should  be  real,  the  Constitution  gave  Congress  the 
right  to  make  the  "  necessary  and  proper  "  laws  mentioned 
in   the   last   section.     This,    coupled   with   the    judicial 


General  Character  of  American  Federalism    207 

right  to  interpret  the  Constitution  and  the  laws  of  the 
United  States,  has  been  ample  authority  to  maintain  and 
to  extend  the  power  of  the  United  States  government. 
Finally,  the  Constitution,  the  laws  of  the  United  States,  and 
treaties  are  the  supreme  law  of  the  land,  and  state  laws 
"contravening  these  are  null  and  void. 

241.  Powers  concurrently  exercised  by  the  United  States  Taxation, 
or  the  State  Governments.  -^  Not  all  of  these  powers  we 
have  just  enumerated  are  exclusive.  If  we  apply,  as  a  test, 
the  criteria  of  exclusive  powers  given  in  section  239, 
we  find  that  the  general  power  of  taxation  may  be  exercised 
by  either  the  central  or  the  state  governments.  Yet  there 
are  limitations  placed  upon  either  one  or  the  other  in 
regard  to  certain  kinds  of  taxes,  e.g.  the  United  States 
government  cannot  levy  direct  taxes  except  in  proportion 
to  the  population,  neither  can  it  lay  a  duty  on  exports  from 
the  states  at  all,  nor  tax  state  property.  The  states  cannot 
tax  external  commerce  except  with  the  consent  of  Congress 
and  for  the  national  treasury,  nor  can  they  tax  national  banks 
or  national  property.  Otherwise,  either  government  may 
tax  what  it  pleases  or  borrow  money,  and  it  is  only  by 
custom  that  the  taxes  do  not  overlap. 

Several  classes  of  concurrent  powers  are  those  which  are  Bankruptcies 
left  to  the  regulation  of  the  national  government,  but  in  ^^^  '"*"*'*• 
which  the  states  may  legislate  in  case  the  United  States 
fails  to  take  any  action.  The  subject  of  bankruptcies 
offers  many  examples  of  this  state  of  affairs,  for  Congress 
has  not  seen  fit  to  maintain  a  national  law  during  most  of 
our  history,  so  the  states  have  in  the  interim  passed  laws 
suited  to  their  own  needs;  but  these  become  invalid  as 
soon  as  the  central  government  acts.  The  case  of  the 
militia  is  somewhat  similar.  Many  details  of  the  elections 
of  representatives  and  senators  may  be  controlled  by  Con- 
gress, but  in  default  of  national  laws  the  states  do  as  they 
please. 


United  States 
and  sta 

state  courts  we  have  an  instance  similar  to  these  last  classes,   cotirts. 


In  the  concurrent  jurisdiction  of  the  United  States  and 

''  and  state 


208 


The  American  Federal  State 


General 
character  of 
state  powers. 

Wilson.  The 
State,  §j 
1088-1095. 


Private  and 
criminal  law. 


Administra- 
tive and 
socialistic 
functions. 


This  jurisdiction  is  concurrent  if  it  comes  within  that  con- 
ferred by  the  Constitution  upon  the  national  courts,  except 
for  the  cases  over  which  the  Supreme  Court  has  original 
jurisdiction  or  the  inferior  courts  are  given  exclusive 
jurisdiction  by  act  of  Congress. 

242.  Sphere  of  State  Activity. — While  the  states  are 
excluded,  either  by  express  prohibition  or  by  implication, 
from  the  greater  part  of  national  affairs,  they  control  all 
other  subjects  of  government  except  those  denied  to  all 
governments,  and  consequently  reserved  to  the  people. 
Lest  there  should  be  doubt  in  any  one's  mind  on  that 
point,  the  tenth  amendment  says,  "The  powers  not  dele- 
gated to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  states,  are  reserved  to  the  states 
respectively  or  to  the  people."  In  this  amendment  we 
find  given  the  means  of  determining  whether  a  power  is 
rightfully  exercised  by  a  state,  and  this  is  done  by  finding 
out  what  does  not  belong  to  the  state.  If  a  power  is  given 
to  the  central  government  alone,  or  if  it  is  prohibited  to 
the  states  by  the  Constitution,  it  cannot  be  used;  all  other 
powers  belong  to  the  states,  and  can  be  exercised  by  the 
state  governments  unless  the  state  constitutions  forbid. 

This  apparently  vague  and  indefinite  field  in  which  the 
state  is  supreme  is  one  of  great  importance,  not  only 
from  the  variety  of  subjects  included,  but  from  their  per- 
sonal relation  to  the  individual.  Practically  all  matters 
belonging  to  the  criminal  and  to  the  private  law  are 
regulated  by  the  states,  including  laws  regarding  prop- 
erty and  the  business  and  personal  relations  of  one 
individual  to  another. 

The  state  has  complete  charge  of  all  local  government, 
of  education,  of  the  elective  franchise,  of  most  corporations, 
police  duties,  marriage  and  divorce,  the  poorer  and  delin- 
quent classes,  and  public  health.  It  is  constantly  brought 
into  close  touch  with  the  individual.  Legislation  on  these 
subjects,  and  the  administration  of  the  laws  made  upon 
them,  may  be  left  by  the  state  to  the  state  government  or 


General  Character  of  American  Federalism     209 

the  local  governments;  but  in  any  case  the  control  of  the 
state  over  all  of  them  is  exclusive  and  absolute.  It  is  in 
addition  to  the  concurrent  powers  already  mentioned. 

The  following  passage  from  Wilson  {The  State,  section 
1095)  shows  clearly  the  importance  of  the  state  sphere  :  — 

"  A  striking  illustration  of  the  preponderant  part  played  by  State  A  compari- 
law  under  our  system  is  supplied  in  the  surprising  fact  that  only  ^o"  ^^''^ 
one  out  of  the  dozen  greatest  subjects  of  legislation  which  have  *^"8^"  • 
engaged  the  public  mind  in  England  during  the  present  century 
would  have  come  within  the  powers  of  the  federal  government 
under  the  Constitution  as  it  stood  before  the  [Civil]  War,  only 
two  under  the  Constitution  as  it  stands  since  the  addition  of  the 
war  amendments.  I  suppose  that  I  am  justified  in  singling  out  as 
these  twelve  greatest  subjects  of  legislation  the  following:  Catholic 
emancipation,  parliamentary  reform,  the  abolition  of  slavery,  the  amend- 
ment of  the  poor  laws,  the  reform  of  municipal  corporations,  the  repeal 
of  the  corn  laws,  the  admission  of  Jews  to  Parliament,  the  disestablish- 
ment of  the  Irish  church,  the  alteration  of  the  Irish  land  laws,  the 
establishment  of  national  education,  the  introduction  of  the  ballot,  and 
the  reform  of  the  criminal  law.  Of  these,  every  one  except  the  corn 
laws  and  the  abolition  of  slavery  would  have  been  under  our  system, 
so  far  as  they  could  be  dealt  with  at  all,  subjects  for  state  regulation 
entirely;  and  it  was  only  by  constitutional  amendment  made  in  recog- 
nition of  the  accomplished  facts  of  the  war  that  slavery,  which  was 
formerly  a  question  reserved  for  state  action,  and  for  state  action 
alone,  was  brought  within  the  field  of  federal  authority." 

243.   Purpose  and  Classes  of  Prohibitions  on  Government.   Methods 
—  Prohibitions  have  been  placed  by  the  Constitution  of  "^^^  t^ew:*' 
the  United  States  upon  the  different  governments  of  this  ends, 
country  for  three   separate   purposes:  (i)  to   prevent  all 
action  by  any  government  on   certain   subjects;   (2)   to 
protect  the  states  or  individuals  from  interference  by  the 
national  government;  (3)  to  keep  the  states  from  infring- 
ing upon  the  powers  given  to  the  central  government  and 
demanding  concerted  action.     The  first  object  is  obtained 
by  prohibiting  both  to  the  national  and  the  state  govern- 
ments the  granting  of  titles  of  nobility,  the  passing  of  bills 
of  attainder,  and  ex  post  facto  laws  on  criminal  subjects  or 
p 


210 


The  American  Federal  State 


For  the  sake 
of  the  central 
government 
and  citizens. 

Hinsdale, 
hk  434-445- 


For  protec- 
tion of 
individuals. 

Hinsdale, 
kh  559-568. 
624-631. 

Cf.  §§  558- 
560. 


laws  recognizing  slavery.  The  second  is  gained  by  direct 
prohibitions  or  limitation  upon  the  United  States  govern- 
ment; the  third  by  prohibitions  upon  the  states  in  the 
national  Constitution.  The  sphere  of  activity  from  which 
all  governments  are  excluded  may  be  further  enlarged  by 
uniform  action  among  the  states.  If,  for  instance,  a  cer- 
tain subject  belongs  entirely  to  the  states,  and  all  the  state 
constitutions  agree  in  prohibiting  legislation  on  that  sub- 
ject, or  in  permitting  legislation  only  under  certain  limita- 
tions, that  subject  is  then  as  much  outside  the  control  of 
government  as  is  the  granting  of  titles  of  nobility, 

244.  Prohibitions  on  the  States.  —  That  most  of  the  pro- 
hibitions upon  the  states  alone  are  for  the  purpose  stated 
above  is  shown  by  the  fact  that  in  many  cases  the  prohibi- 
tion may  be  removed  with  the  consent  of  Congress.  States 
may  not  make  treaties  or  compacts  with  other  states  or 
foreign  nations,  may  not  have  a  navy  or  army  in  time  of 
peace,  or  lay  imposts  ordinarily,  but  they  may,  theoreti- 
cally, do  the  last  if  Congress  is  willing.  The  states  are 
absolutely  forbidden  to  coin  money,  emit  bills  of  credit, 
make  anything  but  gold  or  silver  a  tender  in  the  payment 
of  debts,  or  pass  a  law  impairing  the  obligation  of  con- 
tracts. Neither  may  they  countenance  involuntary  servi- 
tude, except  for  the  punishment  of  crime,  nor  deny  the 
franchise  to  any  one  because  of  race,  color,  or  previous 
condition  of  servitude.  Finally,  they  may  not  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States  nor 
deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law. 

245.  Prohibitions  on  the  United  States  Government.  — 
The  most  significant  prohibitions  placed  by  the  Constitu- 
tion upon  the  national  government  exclusively  are  for  the 
protection  of  the  individual.  Congress  is  not  allowed  to 
define  treason,  for  a  definition  of  that  all-important  word 
is  placed  in  the  Constitution  itself.  General  search  war- 
rants are  forbidden,  and  the  trial  of  an  accused  person  is 
hedged  about  by  minute  provisions,  that  seek  to  give  him 


General  Character  of  American  Federalism     21 1 

every  chance  to  prove  his  innocence,  and  without  delay. 
According  to  the  Constitution  no  one  can  be  "deprived  of 
life,  liberty,  or  property  without  due  process  of  law,  nor 
shall  private  property  be  taken  for  public  use  without  just 
compensation."  Neither  is  the  privilege  of  the  writ  of 
habeas  corpus  to  be  suspended  except  in  case  of  great 
danger.  Congress  cannot  make  a  law  that  abridges  free- 
dom of  speech,  the  freedom  of  the  press,  or  the  right  of 
assembling  or  of  petition.  Religious  tests  are  never  to  be 
required  of  United  States  officials,  and  Congress  is  not 
permitted  to  establish  a  state  religion  nor  interfere  with 
religious  freedom. 

There  are  other  prohibitions  or  limitations  less  closely  To  guard 
related  to  individual  liberty,  but  intended  rather  to  guard  ^'^^  "shts  of 
the  states  against  discriminating  legislation.     No  export 
duty  can  be  levied  by  Congress,  all  duties  on   imports  {{'"^.^.q- 
are  to  be  uniform  throughout  the  United  States,  and  no  429-432. 
commercial  preference  is  to  be  given  one  state  over  another. 
When  a  direct  tax  is  levied,  it  must  be  in  proportion  to  the 
population  as  given  in  the  last  census.     The  danger  of  a 
military  despotism  is,  as  far  as  possible,  avoided  by  the 
double  provision  that  appropriations  for  an  army  cannot 
be  made  for  a  period  longer  than  two  years,  and  that  no 
money  can  be  drawn  from  the  treasury  except  as  appro- 
priated by  law. 

246.   Interdependence  of  the  National  and  State  Govern-  They  are 
inents.  —  While  the  spheres  of  national  and  state  govern-  oflhg^fame 
ments  overlap  in  some  particulars,  on  the  whole  they  deal  sovereign, 
with  essentially  different  and  mutually  exclusive  fields  of  Federalist, 
activity.     The  state  government  is  supreme  within  most  Nos.  XLV, 
of  its  sphere,  the  national  government  is  supreme  within  all 
of  its  sphere,  and  yet  neither  is  supreme  in  the  sense  that  ^n^ce.  333- 
It  IS  sovereign.     Each  is  an  agent  carrying  out  the  will  of 
the  real  sovereign  —  the  people  of  the  United  States.     As 
each  does  certain  things  for  the  sovereign  that  the  other 
cannot  do,  neither  can   exist  by  itself :  they  are  mutually 
dependent.     This  interdependence  is  shown  in  many  ways. 


212 


The  American  Federal  State 


Use  of  the 
state  gov- 
ernments for 
national 
purposes. 


Each  acts 
upon  indi- 
viduals. 


Nature  of 
citizenship 
in  the  United 
States. 


As  just  mentioned,  the  work  of  the  Federal  State  can  be 
accomplished  by  neither  government  alone.  On  account  of 
the  difference  in  the  task  set  each,  one  cannot  become  sub- 
ordinate to  the  other,  i.e.  the  national  government  cannot 
become  the  agent  of  the  states,  nor  the  states  mere  admin- 
istrative subdivisions  of  the  nation,  with  their  governments 
under  the  control  of  the  central  government,  without 
destroying  the  Federal  State  as  we  know  it. 

The  national  government  makes  use  of  the  states,  or  of 
the  state  governments,  in  the  choice  of  many  of  its  impor- 
tant officers,  especially  the  senators;  and  the  states  may 
prevent  the  election  of  these  officials,  and  might,  by  con- 
certed action,  make  the  organization  of  the  national  gov- 
ernment impossible.  But  the  bare  fact  that  even  in  the 
most  critical  period  of  our  history  this  has  not  been  done, 
shows  rather  an  actual  dependence  of  the  state  upon  the 
nation.  Election  must  occur  in  localities  for  all  the  mem- 
bers of  Congress,  and,  under  the  circumstances,  the  states 
were  the  best  suited  for  this  purpose  as  well  as  for  altera- 
tion in  the  fundamental  law  of  the  land  —  the  Constitution. 

The  interdependence  of  the  state  and  the  national  gov- 
ernments, with  the  lack  of  subordination  of  one  to  the 
other,  is  apparent  when  we  consider  that  each  acts  upon 
individuals,  and  does  not  use  the  machinery  of  the  other. 
For  example,  if  an  individual  infringes  upon  state  law,  he 
is  punished  directly  by  the  agents  of  the  state;  if  he  vio- 
lates national  law,  the  national  government  does  not  call  in 
state  aid,  but  looks  after  the  matter  itself.  In  the  same 
way  national  taxes  are  collected  by  national  officials,  state 
taxes  by  administrative  agents  of  the  state.  So  the  national 
government  and  the  system  of  state  governments  is  each 
complete  in  itself  for  certain  purposes,  but  incomplete 
without  the  other  for  the  great  purpose  it  subserves  —  the 
government  of  the  Federal  State. 

247.  Dual  Character  of  American  Citizenship.  —  Since  the 
individual  is  subject  to  the  state  government  in  certain 
matters,  and  has  certain  rights  guarded  by  that  govern- 


General  Character  of  American  Federalism     213 

ment,  while  he  has  different  rights  and  obligations  under 
the  national  government,  it  is  customary  to  speak  of  the 
dual  character  of  his  citizenship.  He  is  said  to  be  a 
citizen  of  the  United  States,  and  also  a  citizen  of  a 
state. 

There  has  been  during  our  history  a  great  deal  of  contro-  Controversy 
versy  over  this  subject  of  citizenship.     Those  who  held   p^er  'h^  s^^h 

ject  before 

that  the  states  were  sovereign,  and  that  the  Constitution  ises. 

was  a  compact,  claimed  of  course  that  citizenship  was  only  Tjedeman 

of  the  state,  that  there  could  not  be  such  a  thing  as  citizen-    Unwritten 

ship  of  the  United  States,  and  that  the  term  "  citizen  of  the    ^°J"J-  "f 

U.S.  93-97. 

United  States,"  which  occurred  in  the  Constitution,  was 
merely  a  convenient  way  of  speaking  of  a  citizen.  The 
other  class  held  that  there  was  a  citizenship  of  the  United 
States  distinct  from  citizenship  of  the  state;  but  for  three- 
quarters  of  a  century  it  never  succeeded,  judicially  or  other- 
wise, in  clearly  defining  its  position.  Before  the  Civil 
War  there  can  be  no  doubt  that  the  vast  majority  of  the 
people  held  the  state  citizenship  to  be  above  that  of  the 
United  States,  if,  in  fact,  they  admitted  that  there  was  such 
a  thing  as  the  latter. 
248.  Citizenship  as  defined  in  Fourteenth  Amendment.  —  The  xiv 

The  needs  of  the  reconstruction  period  led  Congress  to  pro-  amendment 
,  ,  ,  and  its  inter- 

pose a  constitutional  amendment,  whose   purpose   was  to  pretation. 

recognize  the  freedmen  as  citizens,  and  protect  them  as  such   „.  . 

from  the  state  governments.     The  amendment  stated  that   ^.mp.s.q. 

"all  persons  born  or  naturalized  in  the  United  States,  and  ^  (^890), 

104-123. 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 

States  and  of  the  states  wherein  they  reside.     No  state    ■l'^^^^^' 

'  tola.,  97-109. 

shall  make  or  enforce  any  law  which  shall  abridge  the  privi- 
leges or  immunities  of  citizens  of  the  United  States;  nor 
shall  any  state  deprive  any  person  of  life,  liberty,  or  prop- 
erty without  due  process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws." 
There  was  no  longer  any  doubt  of  the  dual  character  of 
citizenship,  and  the  order  shows  that  United  States  citizen- 
ship was  not  less  important  than  state  citizenship.      But 


214 


The  American  Federal  State 


what  were  the  "privileges  and  immunities  of  citizens  of 
the  United  States"  which  the  states  were  forbidden  to 
abridge?  Did  they  include  everything  specified  in  the 
Civil  Rights  Bill  of  1866  (§  208),  as  the  debates  in  Con- 
gress would  lead  one  to  expect,  or  was  the  object  of  the 
amendment  merely  to  place  beyond  doubt  the  reality  of 
United  States  citizenship,  and  not  to  increase  the  powers 
of  the  national  government  over  civil  rights?  It  was  a 
momentous  question  affecting  the  very  nature  of  federal 
ism  and  the  integrity  of  the  states  as  such,  for  if  the 
national  sphere  was  to  be  so  greatly  enlarged,  the  balance 
between  the  nation  and  the  states  could  hardly  be  longer 
maintained.  The  authoritative  interpretation  of  the  first 
sections  of  the  amendment  was  given  by  the  Supreme  Court 
in  the  Slaughter  House  Cases  (1873).  The  majority  of  the 
justices  held  the  conservative  view  that  the  powers  of 
Congress  had  not  been  increased. 


The  opinion 
of  the  court. 

Thayer, 
Cases  in 
Const' I  Law, 


249.  Significance  of  the  Decision  in  the  Slaughter  House 

Cases. — The  opinion  of  the  court  declares  that  before  1868  "the 
entire  domain  of  the  privileges  and  immunities  of  citizens  of  the  states 
[with  exceptions  mentioned],  as  above  defined,  lay  within  the  consti- 
tutional and  legislative  power  of  the  states  and  without  that  of  the 
federal  government.  Was  it  the  purpose  of  the  fourteenth  amend- 
ment, by  the  simple  declaration  that  no  state  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  and  immunities  of  citizens 
of  the  United  States,  to  transfer  the  security  and  protection  of  all  the 
civil  rights  which  we  have  mentioned,  from  the  states  to  the  federal 
government  ?  "  "  When,  as  in  the  case  before  us,  these  consequences 
[of  giving  the  national  government  full  control  of  civil  rights]  are  so 
serious,  so  far  reaching  and  pervading,  so  great  a  departure  from  the 
structure  and  spirit  of  our  institutions  ;  when  the  effect  is  to  fetter  and 
degrade  the  state  governments  by  subjecting  them  to  the  control  of 
Congress,  in  the  exercise  of  powers  heretofore  universally  conceded  to 
them  of  the  most  ordinary  and  fundamental  character;  when  in  fact 
it  radically  changes  the  whole  theory  of  the  relations  of  the  state  and 
federal  governments  to  each  other  and  of  both  these  governments  to 
the  people ;  the  argument  has  a  force  that  is  irresistible,  in  the  absence 
of  language  which  expresses  such  a  purpose  too  clearly  to  admit  of 
doubt. 


General  Character  of  American  Federalism     215 


Dissenting 
opinions. 


Prof.  Bur- 
gess's view  of 
the  decision. 

Burgess,  Pol. 
Science,  I, 
324-230. 


"  We  are  convinced  that  no  such  results  were  intended  by  the  Con- 
gress wliich  proposed  these  amendments,  nor  by  the  legislatures  of  the 
states  which  ratified  them." 

The  decision  of  the  court  based  upon  this  opinion  has  never  been 
overruled. 

Four  justices  dissented  from  this  opinion,  holding  that  if  the  amend- 
ment did  not  alter  the  relation  of  the  nation  to  the  states,  but  merely 
declared  what  the  law  was,  "  it  was  a  vain  and  idle  enactment  which 
accomplished  nothing  and  most  unnecessarily  excited  Congress  and  the 
people  on  its  passage.  With  the  privileges  and  immunities  therein 
designated  or  implied  no  state  could  ever  have  interfered  by  its  laws, 
and  no  new  constitutional  provision  was  required  to  inhibit  such  inter- 
ference." 

In  this  connection  the  opinion  of  Professor  Burgess  {Political  Sci- 
ence and  Comparative  Constitutional  Law,  I,  225)  is  worthy  of  quota- 
tion. "  I  say  that  if  history  has  taught  anything  in  political  science,  it 
is  that  civil  liberty  is  national  in  its  origin,  content  and  sanction.  I 
now  go  further,  and  I  affirm  that  if  there  is  but  a  single  lesson  to  be 
learned  from  the  specific  history  of  the  United  States,  it  is  this.  Sev- 
enty years  of  debate  and  four  years  of  civil  war  turn  substantially  upon 
this  issue,  in  some  part  or  other;  and  when  the  nation  triumphed  in  the 
great  appeal  to  arms,  and  addressed  itself  to  the  work  of  readjusting 
the  forms  of  law  to  the  now  undoubted  conditions  of  fact,  it  gave  its 
first  attention  to  the  nationalization  in  constitutional  law  of  the  domain 
of  civil  liberty.  There  is  no  doubt  that  those  who  framed  the  thirteenth 
and  fourteenth  amendments  intended  to  occupy  the  whole  ground 
and  thought  they  had  done  so.  The  opposition  charged  that  these 
amendments  would  nationalize  the  whole  sphere  of  civil  liberty;  the 
majority  accepted  the  view;  and  the  legislation  of  the  Congress  for  their 
elaboration  and  enforcement  proceeded  upon  that  view." 

250.  United  States  Citizenship.  —  For  better  or  for  worse,  status  of 
we  have  then  a  distinction  between  a  citizen  of  a  state  and  •^'•'^^"s- 
a  citizen  of  the  United  States.  If  persons  are  born  in  the 
United  States  and  subject  to  its  laws,  they  are  citizens  of 
the  United  States  and  of  the  state  where  they  reside.  If 
they  are  naturalized  according  to  the  laws  of  the  United 
States,  they  are  likewise  citizens.  A  citizen  of  one  state 
who  moves  to  another  state  becomes,  from  that  fact,  a  citi- 
zen of  the  second  state;  and  a  person  who  is  a  citizen  of 
the  United  States,  and  not  living  in  any  state,  is  a  citizen 
of  the  United  States,  without  being  a  citizen  of  a  state.     So 


2l6 


The  American  Federal  State 


Privileges  of 
United  States 
citizenship. 


Some  rights 
of  state 
citizenship. 


a  citizen  of  a  state  is  always  a  citizen  of  the  United  States, 
but  the  reverse  is  not  necessarily  true. 

What  are  the  "privileges  and  immunities  of  citizens 
of  the  United  States  "  ?  We  should  expect  them  to  be  the 
rights  that  the  citizen  has  within  the  sphere  belonging  to 
the  United  States  government,  and  such  is  the  case.  In 
the  same  Slaughter  House  Cases  the  Supreme  Court  has 
enumerated  some  of  these:  "The  right  of  the  citizen  of 
this  great  country,  protected  by  implied  guarantees  of  its 
Constitution,  *  to  come  to  the  seat  of  government  to  assert 
any  claim  he  may  have  upon  that  government,  to  transact 
any  business  he  may  have  with  it,  to  seek  its  protection,  to 
share  its  offices,  to  engage  in  administering  its  functions. 
He  has  the  right  of  free  access  to  its  seaports,  through 
which  all  operations  of  foreign  commerce  are  conducted,  to 
the  sub-treasuries,  land  offices,  and  courts  of  justice  in  the 
several  states.'  .   .  . 

"Another  privilege  of  a  citizen  of  the  United  States  is 
to  demand  the  care  and  protection  of  the  federal  govern- 
ment over  his  life,  liberty,  and  property  when  on  the  high 
seas  or  within  the  jurisdiction  of  another  government. 
.  .  .  The  right  to  peaceably  assemble  and  petition  for 
redress  of  grievances,  the  privilege  of  the  writ  of  habeas 
corpus^  are  rights  of  the  citizen  guaranteed  by  the  federal 
Constitution.  The  right  to  use  the  navigable  waters  of  the 
United  States,  however  they  may  penetrate  the  territory  of 
the  several  states,  all  rights  secured  to  our  citizens  by 
treaties  with  foreign  nations,  are  dependent  upon  citizen- 
ship of  the  United  States,  and  not  citizenship  of  a  state. 
...  A  citizen  of  the  United  States  can,  of  his  own  voli- 
tion, become  a  citizen  of  any  state  of  the  Union  by  a  bona 
fide  residence  therein,  with  the  same  rights  as  other  citi- 
zens of  that  state.  To  these  may  be  added  the  rights  se- 
cured by  the  thirteenth  and  fifteenth  articles  of  amendment 
and  by  the  other  [part  of  first]  clause  of  the  fourteenth." 

251.  StateCitizenship.— -While  no  state  can  create  citi- 
zenship by  its  laws,  the  larger  part  of  the  rights  of  citizens 


General  Character  of  American  Federalism     217 

are  left  to  the  supervision  of  the  state  governments,  just  as 
the  sphere  of  state  activity  is  larger  than  that  of  the  central 
government.  It  would  be  difficult  to  enumerate  all  of  these 
rights,  but  among  the  most  important  are  protection  by  the 
state  government  in  matters  over  which  it  has  control,  right 
to  life,  liberty,  and  property,  except  as  restrained  for  the 
general  good,  right  to  make  contracts,  to  sue  and  be  sued, 
to  inherit,  purchase,  lease,  hold,  and  dispose  of  real  or 
personal  property,  exemption  from  unjust  taxation  or  un- 
usual fines  or  penalties. 

The  franchise  is  not  a  right  of  citizenship.  It  is  a  politi-  Voters  and 
cal  privilege  conferred  by  a  state  upon  such  of  its  mem-  citizens, 
bers  as  it  deems  fit  to  exercise  such  a  privilege.  Voters 
and  citizens  are  not  the  same.  There  are  usually  more  of 
the  latter,  but  a  state  may  confer  the  right  of  suffrage 
upon  aliens  if  it  wishes.  It  may  also  give  the  alien  the 
rights  of  state  citizenship,  though  it  cannot  make  him  a 
citizen. 

There   are   two   important   restrictions    placed    by   the   Constitu- 

national  Constitution  upon  the  states  in  their  dealings  with   ^'°r*'.  ^^' 
^  °  stnctions 

its  citizens,     (i)  "The  citizens  of  each  state  shall  be  en-  of  state 

titled  to  all  privileges  and  immunities  of  citizens  in  the  citizenship. 

several  states."     That  does  not  mean  that  if  a  citizen  of   Cooiey, 

New  York  becomes  an  actual  resident  of  Alabama  he  is     ^^'   ^^' 

195-197. 
entitled,   under  the  laws   of  the    latter,  to  any  privileges  256-259. 

he  may  have  had  in  New  York,  but  merely  that  Alabama 
must  give  him  all  the  rights  she  confers  upon  her  own  citi- 
zens. She  may  not  discriminate  against  him  as  she  may 
against  an  alien.  (2)  No  state  shall  "deprive  any  person 
of  life,  liberty,  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws."  The  last  clause  is  not  intended  to  make 
it  impossible  for  a  state  to  give  a  man  more  rights  than 
a  child,  but  simply  to  see  that  the  laws  shall  be  applied 
without  injustice  to  any. 

252.  Naturalization.  —  As  stated  above,  citizenship  is  ac-   Acquired 
quired  by  birth  or  naturalization.     The  courts  at  present  citizenship. 


2l8 


The  American  Federal  State 


Process  of 

naturaliza- 
tion. 

Hinsdale,  §§ 
383-385- 

Brit,  and 
Amer. 

Encyclope- 
dia of  Law 
(2d  ed.),  VI, 
19-39. 


Disappear- 
ance of  a 
tendency  to 
worship  the 
Constitution. 


The  Consti- 
tution as  a 
conservative 
force. 


hold  that  Indians  on  reservations  are  not  "born  in  the 
United  States "  in  the  sense  intended,  for  they  are,  in  a 
peculiar  sense,  subject  to  our  jurisdiction.  But  children 
of  aliens,  like  the  Chinese,  who  cannot  become  naturalized, 
may  be  citizens  by  virtue  of  birth  in  this  country.  Chil- 
dren of  American  citizens  who  are  born  abroad  are  consid- 
ered citizens,  but  their  children  are  not  unless  the  parents 
(who  were  born  abroad)  reside  for  a  time  in  this  country. 

According  to  our  present  naturalization  laws,  only  per- 
sons of  the  white  and  black  races  can  be  naturalized.  For 
this  a  residence  of  five  years  is  necessary.  First,  the  per- 
son goes  before  any  court  of  record  and  declares  his  inten- 
tion of  becoming  a  citizen;  then,  at  the  end  of  the  five 
years,  provided  it  is  two  years  after  making  the  declara- 
tion, he  proves  to  the  court  that  he  has  resided  in  this 
country  that  length  of  time,  swears  to  support  the  Constitu- 
tion, and  renounces  allegiance  to  the  State  of  which  he  was 
formerly  a  citizen.  His  wife  and  children  become  citizens 
without  taking  out  separate  papers. 

253.  The  Permanence  of  American  Federalism .  —  Al  though 
Americans  are  justly  proud  of  their  national  political  insti- 
tutions and  the  great  document  which  provides  for  them,  it 
can  be  truthfully  said  that  there  is  no  longer  a  real  "wor- 
ship of  the  Constitution."  This  disappearance  of  blind 
admiration  is  not  to  be  regretted,  as  it  enables  us  to  dis- 
criminate between  the  strong  and  weak  points  of  our  polit- 
ical system,  and  makes  it  possible  to  look  the  situation 
squarely  in  the  face.  Such  frankness  and  honesty  of  judg- 
ment are  necessary,  if  we  are  to  properly  adapt  our  institu- 
tions to  changing  conditions,  so  as  to  avoid  future  dangers. 

From  what  has  already  been  said,  it  is  perfectly  evident 
that  the  United  States  is  a  prominent  example  of  progress 
in  all  lines  of  development.  We  saw  in  the  introductory 
chapter  that  unless  the  institutions  of  a  country  reflect  the 
changes  which  occur  within  it,  the  time  will  come  when 
change  will  be  brought  about  by  revolution.  Is  there  not 
danger  that  our  national  Constitution,  which  made  the 


General  Character  of  American  Federalism     219 

creation  of  a  Federal  State  possible,  and  which  has  been 
the  great  supporter  of  federalism  for  a  century,  may  seek 
to  maintain  a  form  of  federalism  our  country  has  outgrown? 
Unquestionably,  the  relative  importance  of  the  states  and 
the  nation  is  not  what  it  was  a  hundred  years  ago,  or  fifty 
years  ago.  Nor  will  it  be  the  same  fifty  years  hence  as  it 
is  to-day.  How  does  our  Constitution  provide  that  it  may 
not  be  outgrown? 

Changes  in  the  Constitution  occur  in  several  ways :  by  Amendment 

actual  amendment,  by  development  of  the  unwritten  con-   o^<*i«Con- 

•'  ^  stitution. 

stitution,  which  modifies  or  supplements  the  original  pro- 
visions, and  by  different  interpretations.  With  three 
exceptions  the  changes  since  1804  have  been  by  the  two 
latter  methods,  but  they  are  ill  adapted  to  meet  great  crises. 
The  Constitution  must,  then,  be  amended  by  law  or  by 
force.  Fortunately  for  most  cases,  but  unfortunately  for 
others,  the  legal  process  of  amendment  is  very  difficult. 

Amendments  may  be  proposed  by  two-thirds  of  each   Dangers  in 

house  of  Congress  or  by  a  convention  called  at  the  wish  of  *^/  method 
°  "'  of  revision, 

two-thirds  of  the  state  governments.     They  are  part  of  the 

Constitution  when  ratified  by  legislatures  or  conventions  po^^sllence 
in  three-fourths  of  the  states.  Now,  it  is  possible  for  an  i,  143-154. 
amendment  to  be  defeated  by  states  that  in  1900  had  less 
than  one-twentieth  of  the  population  of  the  United  States, 
and  it  would  not  be  possible  to  legally  abolish  equality  in 
the  Senate  if  fifty  thousand  people  objected.  To  admit 
that  overwhelming  majorities  demanding  national  reform 
would  be  balked  by  such  numbers,  is  absurd.  On  the  other 
hand,  amendments  might  be  passed  by  states  whose  popu- 
lation was  in  1900  but  forty-five  per  cent  of  that  of  the 
whole  country.  The  danger  that  a  minority  should  alter 
the  fundamental  law  is  not  great,  but  these  very  illustra- 
tions show  that  constitutional  amendment  at  the  present 
time  does  not  seem  capable  of  giving  the  Constitution 
sufficient  flexibility. 

254.  Conditions  affecting  Federalism As  it  is  ordinarily 

useless,  and  often  dangerous,  to  assume  the  role  of  prophet, 


220 


The  American  Federal  State 


Commercial 
and  indus- 
trial condi- 
tions. 


New 

international 

conditions. 


we  may  simply  consider  one  or  two  things  that  may  affect 
federalism  in  the  future.  Commerce  has  had  much  to 
do  in  consolidating  States,  and  is  the  most  important  bond 
between  nations.  It  tends  to  become  more  rather  than 
less  important.  Industry,  with  its  great  concentration  of 
capital  in  recent  years,  is  aiding  commerce  in  the  United 
States  to  break  down  state  lines.  Uniform  policies  are 
becoming  more  and  more  necessary  in  different  common- 
wealths, and  the  need  of  uniform  policies  in  1787  produced 
the  federal  Union. 

So  far  in  our  history  our  foreign  relations  have  not  been 
important,  but  it  is  hardly  possible  that  our  altered  position 
of  recent  years  shall  not  bring  us  into  close  touch  with 
powerful  members  of  the  family  of  great  nations.  To  con- 
duct foreign  affairs  with  skill  we  must  sacrifice,  to  some 
extent,  the  democratic  idea  of  government  by  the  people 
and  the  federal  idea  of  division  of  power.  In  other  words, 
international  success  may  depend  on  great  centralization 
of  power  in  unfettered  officials,  chosen  not  because  they 
represent  the  people,  but  because  of  unquestioned  capacity. 

There  are  so  many  things  about  which  the  feeling  to-day 
is  so  much  more  national  than  it  was  half  a  century  ago 
that  it  is  unnecessary  to  enumerate  them.  If  the  states 
will  voluntarily  adopt  more  uniform  laws  on  such  subjects 
as  marriage  and  divorce,  holding  and  taxation  of  property, 
definition  and  punishment  of  crimes,  and  regulation  of 
corporations,  national  control  will  be  less  necessary;  but 
radical  differences  in  state  law  and  procedure  will  be  less 
readily  overlooked  in  the  future.  Only  that  future  can 
decide  whether  the  United  States  is  "an  indestructible 
union  of  indestructible  states,"  as  we  fondly  hope;  but 
we  can  predict,  with  some  degree  of  confidence,  that  many 
decades  hence  the  powers  of  sovereignty  exercised  by  the 
national  and  the  state  governments  will  not  be  essentially 
different  from  those  exercised  by  each  at  the  present; 
that  is,  there  seems  good  reason  to  believe  that  in  this 
country  federalism  will  be  permanent. 


General  CJiaracter  of  American  Federalism     221 

QUESTIONS  AND  REFERENCES 
Centralization  and  Federfdlsm  (§§  232-237) 

a.  Centralization  in  France.  Historical :  Adams,  European  History, 
212-224,  337,  355-364;  Wilson,  The  State,  §§  351-397;  Lacombe, 
The  Growth  of  a  People,  108-167, 

b.  Government:  Wilson,  §§  398-475;  Burgess,  Political  Science, 
11,94-105,  131-132,  288-306,  352-355;  Lowell,  Governments  and 
Parties  in  Continental  Europe,  I,  1-65;  Goodnow,  Comparative  Ad- 
ministrative Law,  I,  83-88,  266-294. 

1.  Show  how  force,  voluntary  union,  and  gradual  consolidation  aided 
in  centralization  in  Great  Britain;  in  France;   in  the  United  States. 

2.  Compare  the  political  centralization  of  England  and  France  with 
that  of  the  United  States.  To  what  extent  are  the  counties  of  Eng- 
land and  the  departments  of  France  free  from  control  by  the  central 
government  ? 

3.  Mention  two  or  three  subjects  besides  suffrage  in  which  state 
action  has  been  better  than  national  law  would  have  been,  and  try 
to  show  why. 

4.  Name  instances  where  the  innovations  by  the  states  have  been  a 
disadvantage  to  the  United  States.  Is  complete  state  autonomy  more 
or  less  desirable  than  fifty  years  ago,  i.e.  is  local  self-government 
more  or  less  necessary  in  later  than  in  earlier  stages  of  a  country's 
growth  ? 

5.  If  a  treaty  is  part  of  the  "  supreme  law  of  the  land,"  should  it 
not  be  administered  by  national  officials  or  enforced  by  national  courts  ? 
If  so,  cannot  the  national  government  infringe  upon  the  rights  of  the 
states  ?  Are  the  rights  of  aliens  properly  or  entirely  under  state  con- 
trol ?  Would  a  constitutional  amendment  be  necessary  to  give  our 
central  government  power  to  enforce  every  provision  of  all  treaties  ? 

The  Nation  and  the  States  (§§  23S-246) 

a.  Make  a  comparative  study  of  the  distribution  of  powers  in  coun- 
tries having  dual  governments,  consulting  Crane  and  Moses,  Politics, 
253-264  (general);  "Woolscy,  Political  Science,  II,  166-258;  Wilson, 
The  State,  §§489-557,  636-728,  1016-1022;  Freeman,  Federal  Gov- 
ernment  in  Greece  ;  Vincent,  State  and  Federal  Government  in  Swit- 
zerland, chap.  Ill;  Moses,  Federal  Government  in  Switzerland,  chap. 
Ill ;  Beach,  "  The  Australian  Constitution,"  Political  Science  Quarterly, 
XIV,  663-680;  Hart,  Federal  Government  (United  States,  Switzerland, 
Germany,  Canada). 


222  The  American  Federal  State 

1.  Compare  the  distribution  of  power  between  the  central  govern- 
ment and  the  states  in  the  United  States,  Canada,  and  Austraha. 
Where  are  the  "  residuary "  powers  in  each  case  ? 

2.  Mention  several  instances  of  the  use  of  implied  powers  by  the 
national  government.  Can  Congress  constitutionally  build  a  bridge 
across  the  Delaware  River  ?     Give  your  reasons  in  full. 

3.  Name  all  the  exclusive  powers  of  Congress  you  can  think  of 
which  are  not  denied  to  the  states. 

4.  If  a  new  national  Constitution  were  to  be  framed  this  year,  what 
additional  powers,  if  any,  should  be  granted  Congress,  in  your  opinion  ? 

5.  Should  the  powers  concurrently  exercised  by  the  nation  and  the 
states  be  increased  or  decreased  in  number,  and  why  ? 

6.  Prove  that  the  sphere  of  state  activity  is  larger  than  it  was  a  hun- 
dred years  ago,  or  show  that  the  statement  is  untrue.  What  powers, 
if  any,  have  been  transferred  from  the  states  to  the  nation  during  the 
nineteenth  century  ? 

7.  Study  the  history  of  the  provision  that  prohibits  the  states  from 
passing  laws  impairing  the  obligation  of  contracts.  Why  was  it  in- 
serted in  the  Constitution  ?  how  has  the  clause  been  interpreted,  and 
what  influence  has  it  had? 


American  Cittzenship  (§§  247-254) 

a.  Constitutional  amendment.  England:  Wilson,  7)4^  ^Va/if,  §  917; 
Burgess,  Political  Science,  I,  138-141.  France :  Wilson,  §§  399,  410, 
411;  Burgess,  I,  168-173.  Germany:  Wilson,  §  499;  Burgess,  I, 
155-167. 

b.  United  States,  NATIONAL:  Wilson,  §§  1262,  1264;  Burgess,  I, 
142-154;  State  :  Wilson,  §§  1101-1107;  Bryce,  302-304;  Cleveland, 
Democracy,  111-126;  Texts  of  Constitutions,  in  A.  A.  A.;  some  in 
Statesman's  Year  Book;  "State  Constitutions,"  in  Poore's  Charters 
and  Constitutiorts,  2  volumes. 

1.  Name  some  of  the  civil  rights  now  under  the  control  of  the  states 
that  would  have  been  given  Congress  had  the  Slaughter  House  Cases 
been  decided  the  other  way.  Has  the  decision  in  these  cases  been  ac- 
cepted by  the  country  as  correct  ?  why?  Will  the  decision  in  the 
end  aid  or  injure  Federalism?  why? 

2.  Tell  whether  the  rights  of  a  citizen  would  be  protected  in  the 
following  cases  because  of  state  or  United  States  citizenship.  Give 
reasons,  (a)  In  inheriting  property;  (^)  if  injured  in  China;  (f)  if 
on  trial  for  forging  a  note;  (aT)  when  attempting  to  make  another 
keep  a  contract;  (<f)  if  condemned  to  be  hanged  for  stealing  some- 
thing to  eat;   (/)  if  denied  right  to  testify  in  a  civil  suit;   (^)  if  de- 


General  Character  of  American  Federalism.     223 

frauded  by  an  agent;  (-4)  if  tried  without  a  jury  for  treason;  (i)  if 
denied  the  privilege  of  the  writ  of  habeas  corpus  in  time  of  peace; 
(y )  if  taxed  by  a  state  for  importing  goods;  (i)  when  seeking  to  gain 
money  due  from  an  employer. 

3.  How  would  the  method  of  amending  the  Constitution  probably 
be  different  if  a  new  one  were  to  be  adopted  by  a  new  convention  at 
the  present  time  ?  Why  is  the  clause  referring  to  amendment  the 
most  important  one  of  the  Constitution  ? 

4.  Is  any  country  ever  governed  wholly  by  the  people  living  at  any 
particular  time  ?  Should  it  be  ?  If  the  latter,  why  is  a  country  bound 
to  follow  the  method  of  constitutional  amendment  adopted  by  a  pre- 
vious generation  ?  Is  there  greater  danger  of  being  too  conservative 
or  too  radical  ? 


CHAPTER  XI 

THE  SENATE 
Genercd  References 

Hinsdale,  American  Government,  160-193. 

Bryce,  American  Commonwealth  (abd.  ed.),  71-93. 

Hamilton,  Madison,  and  Jay,  The  Federalist,  Nos.  LXII-LXVI. 

Story,  Commentaries,  chaps.  V'lII,  X-XIIl. 

Wilson,  Congressional  Government,  193-241.  Professor  Wilson's  es« 
say  gives  a  very  striking  account  of  the  workings  of  Congress. 
Written  when  executive  influence  was  not  great.  Favors  Eng- 
lish system. 

McConachie,  Congressional  Committees,  259-348.  An  inside  view  of 
the  way  Congress  does  its  business. 

Meigs,  Growth  of  the  Constitution,  68-122.  Resolutions  of  conven- 
tion of  1787  on  Senate  classified. 

Alton,  Among  the  Law-makers.  Gives,  in  popular  form,  accounts  of 
particular  events  which  illustrate  the  methods  and  processes  of 
Congress. 

Dawes,  How  We  Are  Governed. 

Lalor's  Cyclopedia.  Articles  by  Spofford  on  "  Parliamentary  Law,"  by 
Johnston  on  "  Senate,"  by  Eaton  on  "  Confirmation  by  the  Senate," 
and  the  articles  on  "Congress." 

Periodical  literature.  Consult  indexes  under  Senate  and  United  States 
Senate. 


Reasons  for 
its  bicameral 
organization. 

Story,  Com- 
mentaries, 

kk  555-558. 
562-570. 


255.  The  Congress.  —  According  to  the  Constitution  all 
legislative  power  granted  to  the  United  States  government 
is  vested  in  a  Congress  of  two  houses.  These  houses  are 
constituted  in  different  ways,  and  represent,  in  theory,  the 
states  and  the  people  respectively.  The  upper  house,  or 
Senate,  is  made  up  of  two  representatives  from  each  state, 
chosen  by  the  legislature  of  that  state,  while  the  members 
of  the  lower  house  are  chosen  in  districts  of  nearly  equal 

224 


The  Senate 


225 


population.  The  objects  of  having  the  Congress  bicameral 
are  twofold:  the  one  historical,  the  other  practical.  At 
the  time  the  Constitution  was  framed  almost  all  of  the 
states  had  bicameral  legislatures,  and  the  English  Parlia- 
ment was  made  up  of  two  houses.  The  convention  there- 
fore but  followed  Anglo-Saxon  precedents.  Yet  it  would 
hardly  have  done  so  but  for  the  decided  advantage  which 
it  was  thought  the  two-chambered  legislatures  had  over  a 
unicameral  one.  With  the  preference  that  then  obtained 
for  checks  and  balances,  the  convention  would  probably 
have  favored  two  houses  had  they  been  constituted  in  the 
same  way;  but  as  they  were  radically  different  in  compo- 
sition, and  were  thought  to  represent  just  as  different  inter- 
ests, the  value  of  two  houses  was  admitted  by  practically 
every  member.  Although  there  has  not  been  the  great 
difference  between  the  Senate  and  the  House  that  most 
expected,  and  while  they  have  often  blocked  necessary 
legislation,  there  is  little  doubt  that  we  have  had  better 
government  and  more  perfect  laws  because  all  power  was 
not  intrusted  to  one  house. 

256.  The  Bicameral  Legislature  in  History. — It  cannot  be  Ontbeconti- 
truthfully  said  that  the  bicameral  system  is  the  most  natural  one,    n^nt 
in   spite   of  its   almost   universal   use   at   the   present   time.     Nearly    (.'^"''OP*/' 
all  of  the  continental  countries  had  three  houses  or  estates,  as  in   Wilson,  The 
France,  or  four  houses,  as  in  Sweden,  and  the  bicameral  legislature    State,  J{  375, 
has  been  adopted  by  them  during  this  century  because  of  its  practical   794* 
value. 

When  Edward  I  called  his  model  parliament  in  1295,  —  the  first  one  in  England, 
worthy  of  the  name,  —  there  were  four  "  estates  "  represented  :  the 
uobility,  the  clergy,  the  lesser  nobility  or  knights,  and  the  burgesses  or  « t  848-853. 
townsmen.  As  the  clergy  either  abstained  entirely  from  attending  or 
threw  in  their  lot  with  the  nobility,  and  the  knights  and  burgesses 
voted  together,  these  four  estates  became  in  less  than  a  century  a 
House  of  Lords  and  a  House  of  Commons. 

The  first  colonies  were  largely  under  the  legislative  control  of  a  gov-  In  America. 
(Tnor  and  assistants.  The  people  were  first  allowed  a  share  in  the 
government,  when  they  chose  representatives  who  sat  with  the  assist- 
ants, and  were  consulted  on  certain  matters.  Gradually  these  two 
bodies  came  to  sit  apart  until,  in  1 787,  Pennsylvania  and  Georgia  were 
Q 


226 


The  American  Federal  State 


Long  and 
short  ses- 
sions. 


Special  ses- 
sions of 
Congress. 


Special  ses- 
sions of  the 
Senate. 


the  only  ones  that  had  a  single  chambered  legislature,  and  each  of 
these  added  another  house  before  1 791.  All  of  the  newer  states  have 
had  two  houses  from  the  beginning.  As  the  Continental  Congresses 
were  intended  to  be  diplomatic  bodies,  they  were  not  separated  into 
two  parts,  and  their  successor,  the  Congress  of  the  Confederation, 
though  given  power  to  make  laws,  was  made  up  in  the  same  way. 
The  failure  of  the  Congress,  as  contrasted  with  the  success  of  the  legis- 
latures in  the  states,  did  much  to  strengthen  the  desire  for  a  national 
legislature  of  two  houses.  So  after  it  was  decided  to  make  a  new  con- 
stitution, the  convention  was  all  but  unanimous. 

257.  Sessions  of  Congress — The  life  of  each  Congress  is 
the  same  as  the  term  of  a  representative,  or  two  years,  and 
they  are  numbered  accordingly,  as,  e.g.  the  fifty-fifth  Con- 
gress began  its  career  with  March  4,  1897,  and  closed  it  on 
March  4,  1899.  It  is  very  unusual  for  any  Congress,  how- 
ever, to  be  in  session  more  than  half  of  that  time.  It  has 
two  regular  sessions,  popularly  known  as  the  long  session 
and  the  short  one.  The  long  session  begins  at  noon  on  the 
first  Monday  of  December  in  the  odd  years,  and  continues 
until  both  houses  agree  to  adjournment,  which  occurs 
usually  in  the  early  part  of  the  summer.  The  short  session 
begins  on  the  first  Monday  of  the  following  December,  and 
continues  till  the  4th  of  March.  Congress  may  adjourn 
sooner  if  the  Senate  and  the  House  agree;  but  nowadays 
that  is  never  done,  and  the  last  days  of  the  short  session 
are  usually  the  busiest  ones  Congress  ever  has.  On  extraor- 
dinary occasions  the  President  calls  an  extra  session  by 
issuing  a  proclamation,  naming  the  date  and  setting  forth 
the  reasons  for  his  action.  Congress  may  itself  provide 
for  such  an  extra  session  between  the  regular  ones  by  ad- 
journing to  a  fixed  date  earlier  than  December.  In  case 
the  houses  disagree  as  to  the  time  of  final  adjournment,  the 
President  may  step  in  and  set  a  date. 

The  Senate  is  always  convened,  usually  without  th: 
House,  immediately  after  the  inauguration  of  a  President, 
for  the  purpose  of  acting  upon  executive  appointments.  It 
may  also  be  called  together  in  order  to  attend  to  treaties 
of  importance. 


The  Senate 


227 


258.  Provisions  Common  to  Both  Houses ;  Privileges  and 
Disabilities  of  Members.  — Article  I  of  the  Constitution  makes  the 
following  regulations  for  Congress  and  congressmen :  — 

"Section  V.  [i.]  Each  house  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members  ;  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business,  but  a  smaller  number 
may  adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the 
attendance  of  absent  members  in  such  manner  and  under  such  penal- 
ties as  each  house  may  provide. 

2.  "  Each  house  may  determine  the  rules  of  its  proceedings,  pun- 
ish its  members  for  disorderly  behavior,  and,  with  the  concurrence  of 
two-thirds,  expel  a  member. 

3.  "  Each  house  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may,  in  their 
judgment,  require  secrecy;  and  the  yeas  and  nays  of  the  members  of 
either  house  on  any  question  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 

4.  "  Neither  house,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any 
other  place  than  that  in  which  the  two  houses  shall  be  sitting. 

"Section  VI.  [i.]  The  senators  and  representatives  shall  receive 
a  compensation  for  their  services,  to  be  ascertained  by  law,  and  paid 
out  of  the  treasury  of  the  United  States.  They  shall,  in  all  cases  ex- 
cept treason,  felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
during  their  attendance  at  the  session  of  their  respective  houses,  and 
in  going  to  and  returning  from  the  same;  and  for  any  speech  or  debate 
in  either  house  they  shall  not  be  questioned  in  any  other  place. 

2.  "  No  senator  or  representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority  of 
the  United  States,  which  shall  have  been  created,  or  the  emoluments 
whereof  shall  have  been  increased,  during  such  time;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office." 

259.  Compensation  of  Members — The  members  of  Congress 
under  the  Confederation  were  paid  out  of  the  state  treasuries.  This 
increased  their  dependence  on  the  legislatures,  and,  as  they  were  sub- 
ject to  instruction  and  recall,  made  them  mere  delegates  of  the  states. 
The  constitutional  convention  was  composed  of  men  who  had  almost 
without  exception  served  in  the  old  Congress.  They  appreciated  these 
evils,  and  realized  the  need  of  making  all  persons  connected  with  the 
new  United  States  government  independent  of  the  legislatures.  There 
was  indeed  a  movement  to  have  the  members  of  Congress,  like  those 
of  Parliament,  serve  without  pay,  but  this  did  not  receive  sufficient 


Hinsdale, 
{}  312-330. 


Membership 
and  quorum. 


Rules  and 
control  of 
members. 

Journal. 


Adjourn- 
ment of  one 
house. 

Compen- 
sation and 
privileges  of 
members. 


Disabilities 
of  members. 


The  subject 
in  the  con- 
vention. 

Meigs, 
Growth  of 
Const.,  96- 
100. 


228 


The  American  Federal  State 


Pay  of  public 
officials  in 
democracies. 


Pay  of  con- 
gressmen 
(1789-1901). 

Hinsdale, 


support.  Accordingly,  the  congressmen,  judges,  and  civil  officers  were 
to  be  paid  from  the  national  Treasury,  and  Congress,  under  certain 
limitations,  was  to  decide  as  to  the  amount. 

All  democratic  communities  have  opposed  small  salaries  for  any 
official  or  subordinate,  and  have  always  refused  large  salaries  without 
regard  to  the  value  of  the  service.  While  it  may  not  be  correct  to  say 
that  in  the  United  States  minor  officials  are  overpaid,  it  cannot  be 
denied  that  the  salaries  for  positions  of  prominence  have  been  absurdly 
low.  This  attempt  to  equalize  salaries  may  be  very  democratic,  but  is 
ruinous  to  good  government ;  for  a  person  may  be  tempted  to  take  a 
public  position  either  for  the  honor  and  the  power  it  gives  or  for  the 
compensation.  When  the  pay  is  but  a  small  fraction  of  what  a  man  of 
the  same  intelligence  would  receive  in  other  lines  of  work,  and  the 
power  wielded  is  very  limited,  men  of  mediocre  talent  only  will  give  their 
time  for  the  public.  If  this  continues  for  some  time,  whatever  honor 
may  have  attached  to  the  position  at  the  first  gradually  disappears.  So 
democracy,  to  satisfy  an  ideal,  is  very  often  content  with  poor  servants. 

The  pay  of  congressmen  at  the  present  time  is  $^000  a  year,  with 
extra  allowance  for  travelling  expenses,  called  "  mileage,"  and,  in  the 
Senate,  for  clerks.  In  1789  it  was  $6  a  day,  and  later  38.  The  salary 
was  placed  at  ^5000  in  1865.  One  difficulty  in  increasing  the  pay  has 
arisen  from  the  unwillingness  of  a  congress  to  vote  their  successors  a 
large  salary,  and  yet  deny  themselves  the  extra  amount,  and  from  the  op- 
position of  the  people  to  a  congressman's  increasing  his  own  salary.  It 
so  happens  that  if  a  congress  votes  to  increase  the  pay,  according  to  law 
and  custom  they  receive  the  new  salary,  and  not  the  old  one,  for  both 
of  their  sessions,  no  matter  when  the  vote  to  increase  the  amount  was 
taken.  On  the  last  day  of  the  forty-second  Congress  a  bill  was  passed 
substituting  $7500  for  $5000.  This  was  a  gift  of  $5000  to  each  con- 
gressman, under  the  guise  of  pay  for  the  two  previous  years.  So  great 
was  the  popular  disapproval  of  the  "  grab  act "  that  almost  all  of  the 
representatives  that  voted  for  the  increase  lost  their  seats  at  the  next 
election,  and  the  forty-third  Congress  repealed  the  act  at  once.  No 
action  has  since  been  taken. 


Introduction 
of  bills. 

Spofford, 
A.  R.,  in 
Lalor.  Ill, 
71-94,  esp. 
75.  76. 


260.  Method  of  Legislation.  —  Congress  exercises  its 
powers  by  passing  through  both  houses  (a  majority  of  each 
being  present)  bills  or  joint  resolutions,  which,  when 
signed  by  the  President,  become  laws.  The  usual  form 
of  a  bill  is:  "Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  America  in  Con- 
gress assembled."    A  bill  may  be  first  passed  by  one  house 


The  Senate  229 

and  then  considered  in  the  other,  or  it  may  be  introduced 
simultaneously  in  both  houses.  If  it  is  introduced  by  an 
individual  who  is  not,  in  doing  this,  representing  a  com- 
mittee, it  is  read  by  title,  and  usually  referred  to  the  appro- 
priate committee,  who  report  upon  it  later  or  not  as  they 
see  fit.  It  is  usually  "killed  in  committee."  When  a  bill 
is  reported  by  a  committee,  it  has  to  be  read  in  all  three 
times;  and  if  there  is  any  debate  upon  it,  this  debate  and 
the  proposal  of  amendments  takes  place  between  the  second 
and  third  readings  or  after  the  third  reading. 

The  vote  upon  a  bill,  or  upon  a  motion,  order,  or  reso-  Methods  of 
lution,  may  be  taken  in  one  of  three  ways:  (i)  by  calling  ^°""S- 
for  the  ayes  and  noes,  the  presiding  officer  deciding  by  the 
sound;  (2)  by  a  "division"  or  rising  vote,  when  the  mem- 
bers are  counted;  and  (3)  by  calling  the  roll  of  the  mem- 
bers of  the  House  at  the  request  of  one-fifth  of  the  members, 
and  entering  the  vote  on  the  record. 

When  a  bill  has  been  passed  by  one  house,  it  is  signed  by  The  bill  after 
the  presiding  officer  and  sent  to  the  other,  where  it  goes  P^"fg^  ^y 

.  ,  ,  one  house. 

through  the  same  process,  unless  it  has  already  done  so. 
It  is  then  sent  to  the  President.  If  he  signs  it,  or  fails  to 
sign  it,  within  ten  days,  provided  Congress  has  not  mean- 
while adjourned,  the  bill  becomes  a  law.  If  the  President 
disapproves  the  bill,  he  returns  it,  with  his  objections,  to 
the  house  in  which  it  originated. 

Professor  Hinsdale  gives  (p.   338,  American  Government')  these    Distinction 
differences  between  bills,  orders,  and  resolutions.     He  says:  "A  bill    between  bills, 
is  a  form  or  draft  of  law  presented  to  a  legislative  body,  but  not  yet  .   '. 

enacted  into  law.  .  .  .  Mr.  Jefferson  thus  distinguishes  between  an 
order  and  a  resolution.  '  When  the  house  commands,  it  is  by  an  order. 
But  facts,  principles,  and  their  own  opinions  and  purposes  are  expressed 
in  the  form  of  resolutions.'  Joint  resolutions  have  the  resolving  clause, 
'  Resolved  by  the  Senate  and  the  House  of  Representatives.'  Joint 
resolutions  are  not  distinguishable  from  bills,  and  are  subject  to  the 
same  rules.  Other  forms  of  resolutions  are  resolutions  by  the  separate 
houses  and  concurrent  resolutions.  Were  it  not  for  this  clause  [Art. 
Ii  §  7»  cl.  3],  Congress  might  defeat  the  operation  of  the  preceding 
one  by  calling  its  acts  motions,  votes,  or  resolutions,  instead  of  bills." 


230 


The  American  Federal  State 


Three  kinds. 

Lodge,  Hist, 
and  Pol. 
Essays,  169- 
179. 


Filibustering. 

Bryce,  loi- 
103. 


Opposition 
within  the 
majority 
party. 


Disagree- 
ment between 
the  houses. 

Biyce,  140- 
142. 


261.  Difficulties  in  passing  Laws —  The  usual  difficulties 
in  passing  bills  are  of  three  kinds:  (i)  they  may  occur 
in  either  house  when  the  bill  is  first  under  consideration; 
(2)  they  frequently  arise  if  the  houses  desire  different 
features  for  any  bill;  (3)  they  are  caused  by  executive 
veto. 

In  the  first  instance  the  opposition  to  a  measure  may 
come  either  from  the  minority  or  the  majority.  The  party 
out  of  power  seeks  to  hinder  legislation  or  prevent  it  alto- 
gether. This  "filibustering"  may  take  the  form  of  calling 
for  the  roll  of  members  on  unimportant  amendments, 
making  lengthy  speeches  (in  the  Senate,  which  has  never 
adopted  the  "previous  question"),  and  of  remaining  away 
from  the  House  so  that  a  quorum  is  lacking.  So  effectively 
did  the  last  method  succeed  in  blocking  legislation  in  the 
first  weeks  of  the  fifty-first  Congress,  that  Speaker  Reed 
insisted  upon  counting  as  present  Democratic  members 
who  were  in  attendance,  but  did  not  vote.  This  rule  is 
now  used  by  every  House  of  Representatives.  Thus  the 
lower  house,  which  also  employs  the  "previous  question" 
in  order  to  stop  discussion  and  bring  a  measure  to  a  vote, 
has  excellent  control  of  debate. 

A  bill  may  meet  with  the  approval  of  but  a  portion  of 
the  majority,  and,  if  a  party  measure,  its  success  depends 
upon  the  ability  of  its  framers  to  win  over  their  associates. 
This  may  be  done  by  what  is  known  as  "log  rolling,"  the 
principle  of  *  you  help  me  with  my  bill  and  I  will  help  you 
with  yours, '  or  by  calling  a  caucus,  if  the  bill  is  very  im- 
portant, and  obtaining  an  indorsement  of  the  bill.  This 
enables  the  leaders  to  whip  the  refractory  members  into 
line  much  more  easily  than  would  be  possible  without  the 
caucus;  for  members  dislike  to  vote  against  their  party 
under  such  circumstances. 

262.  Conference  Committees — Another  difficulty,  which 
is  often  quite  serious,  may  arise  from  a  disagreement 
between  the  two  houses.  A  favorite  measure  of  one  may 
be  defeated  by  the  other,  or  not  even  treated  with  consid- 


The  Senate  231 

eration,  session  after  session.     Amendments  maybe  added  McConachie, 
to  a  House  bill  by  the  Senate,  or  the  reverse,  which  alter   ^'"'•^-  ^°"^' 
its  character  or  are  objectionable  for  other  reasons.    When  253. 
the  measure  is  of  sufficient  importance  to  justify  it,  a  con- 
ference committee  is  appointed,  made  up  of  an  equal 
number  from  each  house,  who,  if  possible,  agree  upon  a 
compromise  and  seek  to  persuade  their  own  chamber  to 
adopt  the  new  bill.     In  the  majority  of  cases  this  method 
is  successful,  but  on  many  important  subjects  even  this  has 
failed  to  break  the  "deadlock." 

263.  Congress  and  the  Veto —  In  order  to  pass  a  bill  Disagree- 
over  the  President's  veto  it  is  necessary  to  secure  a  two-  "^^"* 

between 

thirds  vote  of  the  members  present,  the  vote  being  taken  congress 

by  calling  the  roll  and  recording  the  ayes  and  nays.     As  a  and  the 

two-thirds  vote  is  not  always  easy  to  get,  and  as  the  reasons  '^^^'  ^°^ 

given  by  the  executive  have  weight  with  at  least  a  few  of  Hinsdale, 

the  members,  it  is  unusual  for  either  house  to  repass  a 

vetoed  bill,  and  more  unusual  for  both  houses  to  do  so.         Bryce,  163- 

165. 
Those  bills  that  are  sent  to  the  President  during  the  last 

ten  days  of  Congress  are  subject  to  an  absolute  negative, 

commonly  known  as  the  "pocket"  veto.     As  they  cannot 

be  returned  within  the  ten  days  allowed,  the  Constitution 

provides   that  they  do   not  become  laws  unless  actually 

signed  by  the  President.     He  can  thus  prohibit  legislation 

by  srmply  ignoring  it.     This  is  a  greater  evil  than  it  would 

be  but  for  the  procrastinating  spirit  of  Congress,  which 

often  leaves  one-quarter  of  the  bills  of  a  session  to  be 

hurried  through  during  these  last  ten  days. 

264.  Composition  of  the  Senate. — The  most  permanent  itsperma- 
part  of  the  Constitution  is  that  which  says  that  no  state   ""^''.  '""* 
shall  be  deprived  of  equal  representation  in  the  Senate     *  "  y* 
without  its  own  consent.     Each  state  has  two  members 
chosen  by  its  legislature  for  a  term  of  six  years.     One- 
third  of  the  senators  retire  every  two  years,  so  that  at  least 

two- thirds  are  always  old  members,  accustomed  to  the 
work  of  the  Senate  and  familiar  with  the  routine  of  busi- 
ness.    As  a  matter  of  fact,  reelection  occurs  so  frequently, 


232 


The  American  Federal  State 


especially  in  older  states,  that  the  proportion  of  new  men 
is  usually  less  than  one-quarter.  This  makes  the  Senate 
seem  like  a  permanent  body,  and  yet  all  the  time  new  life 
and  vigor  is  being  infused  into  it.  There  is  an  element  of 
dignity  and  stability  of  the  highest  value  in  developing  and 
maintaining  a  continuous  legislative  policy,  not  unmindful 
of  public  opinion,  but  little  swayed  by  temporary  influences. 
These  characteristics  of  the  Senate  especially  adapt  it  to 
the  duties  granted  to  it  alone. 


The  British 
House  of 
Lords. 

Wilson, 
The  State, 
kk  9"-9i5- 


The  French 
Senate. 

Wilson, 
$§  406-409. 


265 .  The  Upper  House  in  Other  Countries .  —  The  second  cham- 
ber of  the  national  legislature  in  Great  Britain,  France,  and  Germany 
vary  greatly  in  numbers,  election,  and  power  from  each  other,  and 
from  the  Senate  of  the  United  States. 

The  British  House  of  Lords  is  made  up  of  a  number  of  different 
elements.  There  are  sixteen  Scottish  peers  elected  for  a  single  Parlia- 
ment by  all  the  peers  of  Scotland.  Ireland  sends  twenty-eight  peers, 
who  are  chosen  for  life.  England  and  Wales  are  represented  by  cer- 
tain archbishops  and  bishops  and  by  about  five  hundred  hereditary 
peers.  English  peerages  can  be  created  at  any  time  by  the  ministry. 
The  part  taken  by  the  Lords  in  ordinary  business  may  be  judged  from 
the  necessary  quorum  of  six  members.  As  a  matter  of  fact,  about  fif- 
teen or  twenty  persons  give  their  entire  attention  to  the  work  of  legis- 
lation and  control  the  affairs  of  the  house.  Since  the  Reform  Bill  of 
1832  abolished  the  "  rotten  boroughs,"  which  were  owned  by  the  peers, 
the  lower  house  has  gradually  usurped  the  place  of  the  Lords,  until  now 
the  upper  chamber  would  not  dare  to  continuously  oppose  a  measure 
passed  by  the  Commons  and  desired  by  the  English  people. 

In  France  the  Senate  numbers  three  hundred  members,  chosen  in 
the  departments  for  a  term  of  nine  years,  one-third  retiring  every  three 
years.  Election  is  from  departments  and  is  indirect,  and  the  elec- 
toral body  is  peculiar  in  that  it  is  composed  of  the  members  to 
the  lower  house  —  Chamber  of  Deputies  —  from  that  department, 
and  of  what  would  correspond  to  our  state  legislatures  and  county 
boards  of  supervisors.  The  number,  term,  and  mode  of  election 
of  senators  can  be  altered  at  any  time  by  the  passage  of  an  ordi- 
nary law.  In  legislation  the  Senate  is  much  less  important  than 
the  Chamber  of  Deputies,  although  it  has  legally  as  great  power  as  the 
latter.  It  is  seldom  consulted  by  the  ministers  in  outlining  their  pol- 
icy, and  when  it  has  refused  to  follow  the  lead  of  the  deputies  in  mat- 
ters of  moment,  has  always  been  brought  to  terms  by  its  stronger 
brother. 


The  Senate 


233 


Legal  and 
actual  re- 
quirements. 

Story,  Covi- 
mentaries, 
§{  728-732. 


The  German  Bundesrath  is  as  unlike  the  corresponding  houses  in   The  German 
England,  France,  and  the  United  States  as  it  can  be.     It  is  the  small-   Bundesrath. 
est  body  of  the  four,  as  it  consists  of  but  thirty-eight  persons.     It  is    Wilson 
also  the  most  powerful.    The  members  are  in  reality  delegates  of  a    \\  500-515. 
diplomatic  character,  subject  to  instruction  and  recall,  but  represent- 
ing the  princes  of  the  different  states  in  whom,  according  to  the  German 
theory,  sovereignty  resides.    The  states  are  not  equally  represented; 
but  Prussia,  which  has  over  half  the  population  of  the  empire,  has  sev- 
enteen members  to  six  for  the  next  largest  kingdom,  and  one  each  for 
the  seventeen  smallest.    The  Bundesrath  has  very  complete  legislative 
and  other  duties,  and  is,  in  many  ways,  the  government. 

266.  Qualifications  of  Senators.  —  There  are  certain 
minimum  requirements  prescribed  for  senators  by  the  Con- 
stitution. They  must  be  at  least  thirty  years  of  age,  have 
been  citizens  of  the  United  States  for  nine  years,  and 
inhabitants  of  the  states  for  which  they  are  chosen  at  the 
time  of  the  election.  The  unwritten  law  has  not  added 
to  these  qualifications,  but  by  custom  senators  are  usually 
drawn  from  certain  classes.  Promotion  of  representatives 
who  have  shown  exceptional  skill  in  the  House  is  less  com- 
mon than  formerly,  but  these  congressmen  still  furnish  a 
large  part  of  the  new  senatorial  timber.  State  party  lead- 
ers, many  of  whom  have  never  held  other  public  oflfices,  are 
often  chosen;  and  the  third  class  is  made  up  of  prominent 
business  men  who  have  made  their  mark  outside  of  politics. 

267.  Senatorial  Elections.  — The  place  of  holding  elec- 
tions is  entirely  under  the  control  of  the  state  legislature, 
but  the  time  and  manner  of  election  may  be  prescribed  by  Bryce,  73-74. 
Congress.     Before  1866  everything  was  left  to  each  state, 

and  not  only  great  differences  existed,  but  confusion  and 
disorder  were  often  the  result.  On  July  26  of  that  year 
Congress  passed  an  act,  which  is  still  in  force,  regulating 
details  of  senatorial  elections.  On  the  second  Tuesday 
after  the  state  legislature  met  and  organized,  each  mem- 
ber of  each  House  was  to  name  a  person  for  senator  by 
a  vwa  voce  vote.  The  next  day  the  two  Houses  were  to 
meet  in  joint  assembly,  a  majority  of  each  House  being 
present,  and  vote  in  the  same  way.     If  no  one   had  a 


Method  of 
election. 


234 


The  American  Federal  State 


Vacancies. 


Caucuses. 


Popular 
election 
through  con- 
stitutional 
amendment. 

Mitchell, 
in  Forum, 
XXI  (1896), 
385-396. 

Haynes,  J, 
in  J.H.U.S., 

XI,  547-560. 


Popular 
choice  by 
extra-con- 
stitutional 


majority  of  the  votes,  this  was  to  be  repeated  each  day 
till  a  senator  was  elected. 

In  case  a  vacancy  occurs  between  sessions  of  the  legisla- 
ture, the  governor  may  appoint  some  one  until  the  next 
legislature  shall  choose  a  senator  in  the  way  just  described. 
But  the  Senate  has  never  fully  admitted  the  right  of  a  gov- 
ernor to  appoint  a  senator  when  the  legislature  has  had  a 
chance  and  yet  fails  to  choose  one;  and  its  recent  decisions 
have  all  been  adverse. 

While  there  is  no  law  on  the  subject,  and  custom  varies 
greatly,  the  members  of  any  state  legislature  belonging  to 
the  party  in  control  usually  hold  a  caucus  for  the  purpose 
of  selecting  a  candidate.  If  the  action  of  the  caucus  is 
binding,  it  gives  a  great  power  to  a  majority  of  a  majority 
in  cases  where  a  candidate  has  nearly  enough  votes,  but 
not  quite  a  majority  of  the  whole. 

268.  Proposed  Changes  in  Election  of  Senators.  —  Of  late 
years  there  has  been  considerable  discussion  concerning 
the  Senate  and  the  election  of  senators.  It  is  felt  that 
instead  of  becoming  more  representative  of  the  people, 
senators  are  growing  less  so.  It  is  urged  that  so  long  as 
choice  is  left  to  the  legislature,  corruption  and  bribery  will 
be  common  and  the  wishes  of  the  people  ignored.  Con- 
stitutional amendments  transferring  the  election  to  popular 
vote  have  been  proposed,  and  have  been  indorsed  by  two- 
thirds  of  the  House  of  Representatives  more  than  once; 
but  the  Senate  seems  satisfied  with  the  present  method,  and 
they  have  never  been  passed  by  that  body. 

In  a  great  many  states  the  effort  has  been  made  to  evade 
the  constitutional  requirements  by  nominating  party  candi- 
dates for  senator  before  the  fall  election  of  the  legislature, 
so  that  the  result  was,  in  a  measure,  an  expression  of  popu- 
lar opinion  on  the  contestants.  The  famous  Lincoln- 
Douglas  campaign  of  1858  is  a  notable  example.  Nebraska 
went  farther,  and  in  her  constitution  of  1875  made  it  pos- 
sible for  voters  to  indicate  their  preferences  for  senators. 
There  has  been  some  tendency  to  adopt  the  Nebraska  plan. 


The  Senate 


235 


but  it  will  take  more  pressure  than  can  probably  be  brought 
to  bear  to  m^e  the  legislatures  respect  the  wishes  of  the 
people  expressed  in  this  way. 

269.  Officers.  —  The  presiding  officer  of  the  Senate  is 
the  Vice-president  of  the  United  States,  who  has  no  vote 
unless  the  Senate  is  equally  divided.  His  power  is  in 
sharp  contrast  with  that  of  the  speaker  of  the  House,  as  he 
appoints  no  committees  and  has  no  direct  influence  over 
legislation.  His  qualifications  are  the  same  as  those  of  the 
President,  for  he  must  be  prepared  to  take  the  latter' s 
place;  but  the  duties  connected  with  the  office  are  so  few, 
and  his  position  of  so  little  importance,  that  it  is  difficult 
to  secure  men  of  prominence  for  the  place.  The  danger 
from  men  of  little  capacity  becomes  real,  of  course,  only 
in  case  of  the  death  of  the  President. 

The  Senate  always  chooses  one  of  its  own  members, 
known  as  the  president  pro  tempore,  who  presides  in  the 
absence  of  the  Vice-president,  and  who,  if  the  latter  be 
removed  by  death,  becomes  a  regular  president  of  the  Sen- 
ate. He  does  not,  however,  become  Vice-president  of  the 
United  States.  Formerly  he  might  even  become  Presi- 
dent, if  both  the  presidency  and  the  vice-presidency  were 
vacant;  but  by  law  of  Congress  (1886)  the  succession  now 
belongs  to  the  Cabinet  (§  335). 

The  Senate  has  a  secretary  with  a  score  of  assistants,  a  sergeant-at- 
arms  who  maintains  order,  a  postmaster,  a  doorkeeper,  and  a  chaplain. 
Each  committee  has  one  or  more  clerks,  and  each  senator  has  a  private 
secretary  who  is  paid  out  of  the  public  treasury. 

270.  The  Committees  of  the  Senate.  —  The  Senate  trans- 
acts most  of  its  business  through  the  committees.  There 
are  forty-nine  standing  committees  and  a  number  called 
special,  with  memberships  varying  from  five  to  fifteen. 
These  committees  were  at  first  chosen  by  ballot  in  the  Sen- 
ate, but  the  method  proved  unsatisfactory,  and  since  1845 
they  have  been  selected  in  this  way:  the  political  party 
that  is  to  control  the  organization  of  the  new  Senate  holds 
a  caucus,  and  agrees  to  a  list  of  committees  in  which  all  of 


The  Vice- 
president. 

Story,  Com- 
mentaries, 
kh  1450-1452. 


Other 
officers  of 
the  Senate. 


Composition. 

McConachie, 
Cong.  Com- 
mittees, 266- 
272,  289-294, 
321-326. 


236 


The  American  Federal  State 


Important 
committees. 

See  also  Mc- 

Conachie, 

339-343- 


Conserva- 
tism in 
organization. 

McConachie, 
343  345- 

Cf.  Bryce, 
83-93- 

Cf.  Wilson, 
Cong.  Gov't, 
IV. 


the  important  chairmanships  belong  to  them.  They  retain 
a  majority  on  the  most  important  committees,. but  not  all; 
and  they  may  assign  to  their  opponents  or  to  third  parties 
a  few  minor  places  as  chairmen.  When  possible,  they 
secure  the  consent  of  the  rival  party  to  the  list  before  it  is 
proposed  in  the  Senate;  and,  if  they  cannot,  the  appoint- 
ment of  the  committees  is  delayed  till  the  opposition  is 
satisfied  with  its  share.  In  the  meantime  the  old  com- 
mittees are  continued  until  the  new  ones  are  selected. 

The  most  important  committees  deal  with  the  special 
duties  of  the  Senate.  That  upon  Foreign  Affairs  may  be 
placed  first  because  of  its  connection  with  the  executive  in 
all  our  international  relations.  The  Commerce,  Finance, 
Appropriations,  and  Judiciary  committees  all  occupy  high 
places,  and  are  controlled  by  the  leaders  of  the  dominant 
party. 

271.  Senate  Regulations. — The  semi-permanent  char- 
acter of  the  Senate  is  observable  in  everything  it  does. 
The  rules  are  not  changed  with  each  Congress,  as  is  the 
case  in  the  House.  Leadership  belongs  to  the  older 
members,  who  have  claims  to  the  first  positions  on  com- 
mittees because  of  length  of  service  in  the  Senate.  When 
a  list  of  committeemen  is  made  up,  all  the  members  of  the 
party  in  control  are  placed  above  their  opponents.  The 
one  who  has  been  on  the  committee  longest  is  chairman, 
and  the  new  member  comes  last  of  his  party  and  just  before 
the  leader  of  the  opposition.  The  members  of  the  party 
out  of  power  are  arranged  in  the  same  way.  Then  if  the 
chairman  resigns  for  any  reason,  the  senator  in  second 
place  becomes  chairman,  so  that  the  states  which  change 
their  senators  least  have  a  number  of  important  chairmen 
out  of  all  proportion  to  their  representation  in  the  upper 
house,  and  still  more  disproportionate  to  their  population. 
But  the  method  makes  possible  a  continuity  of  policy, 
which  is  of  the  highest  value  in  legislation  and  adminis- 
tration, and  which  is  one  of  the  principal  sources  of  the 
Senate's  power. 


The  Senate 


237 


Another  evidence  of  conservatism  is  in  the  lack  of  stric- 
tures on  debate.  Most  parliamentary  bodies  have  some 
means  of  setting  a  limit  on  discussion.  This  is  usually  in 
the  form  of  the  cldiure,  or  previous  question,  by  which  the 
body  can  prevent  unnecessary  talk  and  obtain  a  vote  on  the 
pending  bill.  The  Senate  relies  on  its  natural  dignity  to 
keep  the  debate  within  reasonable  bounds.  But  this  reli- 
ance is  often  misplaced,  as  the  minority  frequently  post- 
pone measures  for  no  other  reason  than  to  obstruct  business. 
This  "filibustering,"  as  it  is  called,  has  proved  a  serious 
evil  in  the  Senate,  and  may,  in  time,  make  the  adoption 
of  the  previous  question  a  necessity. 

272.  Power  in  Appointment.  —  During  the  fifty  years 
that  followed  the  Declaration  of  Independence  the  upper 
houses  of  the  state  legislatures  had  quite  as  much  power 
as  the  governors  in  appointment.  This  distrust  of  the 
executive  was  apparent  in  the  constitutional  convention  of 
1787.  A  great  many  wished  to  leave  the  selection  of  all 
officials,  including  the  President,  to  the  Senate.  As  a 
compromise,  the  power  of  appointment  was  given  to  the 
executive  department  with  ratification  by  the  Senate,  unless 
Congress  agreed  that  it  was  not  necessary  for  minor  offices. 

The  value  of  this  check  upon  the  President  has  been  seri- 
ously questioned.  Certain  it  is  that  the  Senate  has  greatly 
augmented  its  own  influence  by  judicious  use  of  the  veto 
upon  appointments.  The  President  is  now  allowed  to 
select  his  own  advisers  without  fear  of  interference  from 
the  Senate;  but  in  the  great  majority  of  cases  he  must  con- 
sult with  the  senator  from  the  state  for  which  the  person  is 
chosen,  and  must  follow  his  advice  if  he  does  not  wish  to 
have  the  appointment  "held  up,"  The  executive  is  a  little 
more  independent  than  it  was  after  the  impeachment  of 
Johnson  and  before  the  quarrel  between  Garfield  and 
Conkling  (1881),  but  it  is  still  far  from  free. 

273.  Treaties.  —  The  Constitution  requires  the  approval 
of  two-thirds  of  the  Senate  for  the  ratification  of  all  treaties. 
In  the  convention  the  power  to  make  treaties  was  at  first 


Conserva- 
tism in 
procedure. 


Distrust  of 
the  execu- 
tive (1787). 


"  Senatorial 
courtesy." 

Bryce,  44-46, 
80-84. 

Eaton,  D.  B., 
in  Lalor,  I, 
580-582. 


The  Senate 
and  treaties. 

Bryce,  78-«a 


238 


The  American  Federal  State 


Schuyler, 
Amer.  Diplo- 
macy, 20-24. 


Real  power 
in  treaty- 
making. 


Purpose  of 
impeach- 
ment. 

Bryce,  34-35. 


given  solely  to  the  Senate,  and  only  after  considerable 
debate  did  they  consent  to  leave  it  to  the  President,  with 
two-thirds  of  the  senators  present.  On  account  of  the 
difficulty  in  getting  a  two-thirds  majority,  the  President 
finds  it  necessary  to  consult  the  Senate  concerning  any  treaty 
being  negotiated.  To  take  all  of  the  members  into  his 
confidence  would  be  to  sacrifice  our  foreign  interests,  as 
diplomacy  is  a  subject  for  which  a  popular  assembly  has 
every  possible  disqualification.  He,  accordingly,  feels  the 
pulse  of  the  Senate  through  the  Committee  on  Foreign 
Relations,  composed  of  men  thoroughly  familiar  with  the 
feelings  of  their  associates  and  with  the  foreign  policy  of 
the  past.  In  this  way  provisions  that  are  sure  to  be  re- 
jected are  not  even  considered  by  the  executive,  and  the 
treaty  is  much  more  likely  to  be  accepted. 

The  Senate  is  very  far  from  being  the  tool  of  the  execu- 
tive in  our  relation  with  other  nations.  It  reserves  to 
itself,  and  uses  the  right  of  amending  or  rejecting  any 
article  of  a  treaty,  or  even  of  inserting  a  new  one.  Such 
an  altered  treaty  must  be  accepted  by  the  President  and 
the  representative  of  the  foreign  power  before  it  becomes 
law.  If  the  Senate  rejects  the  treaty  entirely,  of  course 
negotiations  are  broken  off. 

274.  Method  of  Impeachment.  —  In  English  history  the 
representatives  of  the  people  were  able  to  control  the  agents 
of  the  King  solely  through  the  power  of  impeachment. 
Like  other  English  customs,  that  of  impeachment  was 
adopted  in  a  modified  form  by  the  colonial  assemblies  be- 
cause they  needed  a  check  upon  the  executive  and  the 
judiciary.  When  arrangements  were  made  for  the  impeach- 
ment of  officers  of  the  United  States  in  our  national  Con- 
stitution, it  was  fondly  hoped  that  this  would  assure  the  best 
service  because  of  the  constant  surveillance  of  Congress. 
When  we  realize  that  but  seven  persons  have  been  impeached 
since  1789,  with  only  two  convictions,  it  is  impossible  to 
believe  that  the  wishes  of  the  "  Fathers  "  have  been  fulfilled. 

Impeachment  is  made  by  the  House  of  Representatives, 


The  Senate 


239 


and  can  be  for  "  treason,  bribery,  or  other  high  crimes  and 
misdemeanors."  The  House  states  the  charges,  and  the 
person  accused  is  tried  before  the  Senate  sitting  as  a  court. 
Evidence  is  taken  and  the  trial  conducted  as  in  any  crimi- 
nal court  of  justice.  The  vote  upon  the  charges  is  taken 
by  calling  the  ayes  and  nays,  and  a  two-thirds  majority  is 
necessary  for  conviction.  If  the  person  is  declared  guilty, 
he  is  removed  from  office,  and  may  be  disqualified  from 
holding  any  other  office  under  the  United  States.  He  may 
then  be  tried  in  an  ordinary  court  for  any  crime  defined  in 
the  law. 

All  persons  connected  with  the  United  States  govern- 
ment, except  members  of  Congress,  may  be  impeached. 
When  a  President  is  tried,  the  chief  justice  of  the  Supreme 
Court  presides  over  the  Senate,  as  the  Vice-president  could 
not  be  indifferent  to  a  verdict  that  might  raise  him  to  the 
highest  office  in  the  land. 


Process  of 
impeach- 
ment. 

Hinsdale, 


Who  may  be 
impeached. 


The  two  persons  convicted  were  both  district  judges  of  the  United 
States.  Pickering,  judge  for  New  Hampshire  (1804),  charged  with 
drunkenness  and  profanity,  and  Humphreys,  judge  for  Tennessee 
(1862),  for  disloyalty.  Four  others  have  been  tried  for  impeachment: 
Chase,  justice  of  the  Supreme  Court  (1805),  Peck,  district  judge  for 
Missouri  (1830),  Johnson,  President  of  the  United  States  (1867),  and 
Belknap,  Secretary  of  War  (1876),  all  of  whom  were  acquitted.  In 
1897  Senator  Blount  of  Tennessee  was  impeached  by  the  House,  but 
the  Senate  decided  by  a  vote  of  fifteen  to  eleven  that  congressmen 
were  not  "  civil  officers  of  the  United  States." 


Officials 
convicted. 


275.     Other  Special  Powers.  —  The  Senate  is  called  upon  Election 
to  elect  a  Vice-president  whenever  the  electors  fail  to  do  0^^^"^^- 

^  _  president. 

so.    The  choice  is  limited  to  the  two  persons  receiving  the 

greatest  number  of  electoral  votes.     At  least  two-thirds  of 

the  senators  must  be  present,  and  the  person  selected  must 

have  a  majority  of  all  the  senators,  whether  present  or  not. 

Only  once  in  our  history  (1837)  has  it  been  necessary  for 

the  Senate  to  ballot  for  Vice-president. 

Except  in  relation  to  just  one  subject,  the  Senate  has  the  Financial 

same  powers  of  legislation  as  the  House.     "All  bills  for  Powers. 


240 


The  American  Federal  State 


Ct  {§  292- 

396. 


Difficulties 
in  keeping 
two  legisla- 
tive houses 
coSrdinate. 

Cf.  Ford, 
Amer. 
Politics, 
266-274. 


Senate  not 
dominated 
by  the 
House. 


Early  power 
of  the 
Senate. 


raising  revenue  shall  originate  in  the  House  of  Representa- 
tives, but  the  Senate  may  propose  or  concur  with  amend- 
ments, as  on  other  bills."  As  this  topic  will  be  treated 
fully  in  the  next  chapter,  only  a  suggestion  or  two  need  be 
given  here.  It  will  be  noticed  that  the  provision  deals  only 
with  bills  for  raising  revenue,  and  not  for  those  expending 
it.  Further,  while  the  Senate  has  no  initiative  in  obtaining 
money,  the  right  to  amend  revenue  bills  gives  it  almost  as 
much  power  as  the  House  in  finance. 

276.  The  Senate  and  the  House.  —  There  is  no  important 
European  state  in  which  the  two  houses  of  the  legislature 
are  of  equal  importance.  For  various  reasons,  the  lower 
and  more  popular  branch  has  usually  much  greater  actual 
influence  in  shaping  the  policy  of  the  government.  It  is 
beyond  our  purpose  at  this  point  to  investigate  those 
reasons;  but,  assuming  the  fact  that  the  European  houses 
are  unequal,  we  may  ask  whether  the  Senate  is  dominated 
by  the  House  of  Representatives  or  the  reverse,  and  the 
actual  position  of  each  house. 

It  is  certain  that  neither  house  is  subordinate  to  the 
other.  The  chief  cause  of  this  is  the  separation  of  the 
executive  and  legislative  departments.  In  this  country 
the  President  and  his  advisers  are  not  the  agents  of  Con- 
gress, but  of  the  people  directly.  If  they  were  the  agents 
of  Congress,  they  could  not  serve  both  the  Senate  and  the 
House,  but  must  choose  one  or  the  other.  The  one  that 
was  chosen,  or  that  could  make  itself  the  real  power  in 
making  and  executing  law,  would  of  course  control  the 
other.  This  is  what  has  happened  in  England  and  France, 
and  what  has  not  happened  in  the  United  States. 

Still,  the  ablest  of  our  early  statesmen  expected  that  the 
Senate  would  be  rather  an  aristocratic  body,  which  would 
leave  most  of  the  work  in  legislation  to  the  House.  But 
from  the  first  the  Senate  refused  to  take  a  subordinate 
place.  Although  it  was  less  representative  of  the  people, 
it  did  represent  the  states,  and  in  time  it  became  more 
popular  in  character.     It    claimed  a  share   in   framing 


The  Senate  241 

even  the  financial  policy,  and  asserted  its  rights  on  other 
points. 

To-day  the  Senate  is,  in  many  ways,  more  powerful  than  Advantages 
the  House,  This  is  especially  due  to  three  things:  first,  of^Sena** 
the  more  permanent  character  of  the  Senate;  second,  its  House, 
better  organization;  and  third,  the  patronage  it  possesses 
through  the  right  to  confirm  appointments.  Those  who 
have  noticed  the  work  in  Congress  for  several  years  cannot 
fail  to  be  impressed  with  the  way  in  which  the  Senate  has 
gained  its  end,  although  the  House  seemed  to  have  every 
advantage.  The  senators  have  been  more  united.  They 
have  ignored  or  obstructed  House  measures  time  after 
time,  while  Senate  bills  have  been  forced  through  the 
House.  In  conference  committees  they  have  yielded  less 
and  obtained  more  than  the  representatives.  Unfortu- 
nately, the  advantages  of  this  state  of  affairs  have  not. 
always  been  apparent,  largely  because  the  control  of  the 
Senate  has  not  belonged  to  any  one  party,  but  to  irregulars, 
who  have  held  the  balance  of  power. 


QUESTIONS  AND   REFERENCES 

Both  Houses  {%%  255-263) 

a.  On  the  veto  power  in  theory  and  in  practice,  look  up  Johnston, 
in  Lalor,  III,  1064-1067;  Harrison,  This  Country  of  Ours,  126- 
134;   Mason,  The  Veto  Power,  especially  chap.  III. 

1.  Is  it  any  longer  necessary  or  desirable  that  the  Senate  should 
represent  the  states?     Give  your  reasons. 

2.  What  are  the  disadvantages  of  having  so  long  a  time  elapse  be- 
tween the  election  of  a  Congress  and  its  first  regular  session?  Should 
the  lime  of  the  election  or  the  meeting  be  changed  ?  If  so,  why,  and 
in  what  way? 

3.  Trace  the  history  of  the  privileges  of  members  of  Congress  in 
English  and  colonial  history.  Are  the  members  of  your  state  legis- 
lature exempt  in  the  same  way? 

4.  Should  the  pay  of  congressmen  be  increased?  Would  it  result 
in  our  obtaining  better  men? 

R 


242  The  American  Federal  State 

5.  Should  legislation  be  made  less  difficult?  Would  it  be  best  to 
abolish  the  pocket  veto?  Are  advantages  likely  to  be  derived  from 
giving  one  house  sole  power  over  certain  classes  of  bills,  and  the  other 
house  exclusive  control  of  others,  leaving  to  the  second  house  in  each 
case  the  right  to  veto  a  bill,  but  no  power  to  amend  it? 

In  the  following  and  in  similar  sets  of  questions  the  Congressional 
Directory  (Cong.  Dir.)  and  political  almanacs  (Pol.  Als.),  published  by 
different  newspapers,  and  consecutive  records  of  recent  events,  such  as 
Current  History,  will  be  found  almost  indispensable.  The  indexes 
should  be  used  as  much  as  possible. 

i.  What  was  the  longest  single  session  of  Congress?  What  was  the 
length  of  the  last  "  long  "  session  ?  When  was  the  last  extra  session 
held?  How  many  have  been  called  in  our  history?  (Some  Pol.  Als, 
under  "Congress,  Sessions  of"  ;   Manuals  of  the  Houses.) 

ii.  Select  some  bill  recently  enacted.  In  which  house  was  it  in- 
troduced, and  on  what  date?  To  what  committee  was  it  assigned? 
When  was  it  brought  up  for  discussion,  and  how  long  did  this  con- 
tinue ?  What  was  the  final  vote  ?  (Consider  same  points  in  the  other 
house.)      (Current  topics  in  Current  History  or  some  other  magazine.) 

iii.  On  what  important  bills  were  there  conferences  at  the  last  ses- 
sion? Choose  some  one  measure.  Learn,  if  possible,  who  were  mem- 
bers of  the  conference  committee,  and  notice  whether  they  were 
prominent  congressmen  and  especially  interested  in  the  bill.  Was  the 
Conference  Bill  more  like  that  of  the  House  or  of  the  Senate?  What 
was  the  difference  between  the  original  votes  and  the  final  ones? 
(Reference  same  as  ii.) 


Membership  emd  Organization  of  the  Senate  (§§  264-271) 

1.  Are  there  any  features  of  composition,  organization,  or  powers 
of  the  European  upper  houses  that  could  profitably  be  used  by  the 
Senate? 

2.  Is  the  Senate  inferior  in  dignity  and  in  capacity  to  those  of  fifty 
or  seventy-five  years  ago?  Would  its  personnel  be  improved  by  a 
change  in  the  mode  of  election?  Give  your  reasons  in  full.  Are  there 
any  other  advantages  or  disadvantages  of  such  a  change?  Do  you 
favor  keeping  the  present  method  of  election? 

3.  Would  it  be  better  to  abolish  the  Vice-presidency,  to  enlarge  its 
powers,  or  keep  it  as  it  is?  Have  the  objections  of  our  history  come 
from  the  faults  inherent  in  the  office  or  the  character  of  the  men 
selected? 


The  Senate  243 

i.  How  many  senators  were  there  April  30,  1789?  Are  you  sure? 
What  is  the  number  now?  Are  there  any  vacancies  at  present?  To 
what  are  they  due?  How  are  the  political  parties  represented  in  the 
present  Senate?     (Cong.  Dir.) 

ii.  Who  are  your  senators?  When  do  their  terms  close?  How 
long  have  they  been  in  the  Senate  ?  What  other  official  positions  had 
they  held  before  election  to  the  Senate?  To  what  party  or  parties 
do  they  belong?  Does  either  come  from  your  part  of  the  state?  In 
which  of  the  classes  given  in  §  266  would  you  place  them?  (Cong. 
Dir.) 

iii.  What  is  the  number  of  standing  committees  in  the  Senate  now? 
of  special  committees  ?  of  joint  committees  ?  In  which  ones  are  your 
senators?  How  many  chairmen  belong  to  the  minority?  Notice  how 
long  the  five  most  prominent  chairmen  have  been  senators.  Are  any 
serving  their  first  term?     (Cong.  Dir.) 

iv.  What  Vice-presidents  have  become  Presidents?  What  ones 
have  been  elevated  to  the  office  by  the  death  of  the  President  ?  How 
long  did  they  serve  altogether  as  chief  executives?  (Pol.  Als.j  John- 
ston, American  Politics  ;  Amer,  Fed,  State,  Appendix  C.) 


Special  PoweiB  (§§  272-276) 

a.  Story,  in  his  Commentaries,  §§  742-813,  gives  a  discussion  of 
the  tribunal  for  and  methods  of  impeachment;  Harrison,  This  Country 
of  Ours,  148-158,  and  Johnston,  in  Lalor,  treat  of  the  subject  his- 
torically as  well. 

1.  What  are  the  advantages  of  having  the  Senate  participate  in 
appointments?  in  the  making  of  treaties?  Give  the  disadvantages 
in  each  case. 

2.  Can  you  suggest  a  satisfactory  substitute  for  impeachment?  Is 
it  wise  to  give  a  set  of  persons  control  over  officials  through  removal  ? 
Should  the  official  be  removed  by  the  person  or  persons  who  ap- 
pointed him  or  not  ?     Give  your  reasons. 

3.  Is  it  ever  possible  now  to  have  a  President  of  one  party  and  a 
Vice-president  of  another?    If  so,  under  what  conditions? 

i.  What  officials  have  been  appointed  by  the  President  in  your 
county?  Were  any  of  the  appointments  made  in  opposition  to  the 
wishes  of  your  senator  or  representative  ?  Does  your  state  senate 
confirm  the  appointments  of  the  governor? 

ii.  Recall  four  or  five  treaties  in  our  history  that  the  Senate  has 
refused  to  ratify.     Would  our  influence  abroad  have  been  greater  with 


i44  ^^^  American  Federal  State 

the  treaties  than  without?  Was  the  treaty  of  peace  (i 898-1 899)  rati- 
fied by  a  party  vote?  Have  we  any  treaties  of  alliance  now?  Are 
there  any  important  nations  with  wh'ch  we  have  no  commercial 
treaties? 

iii.  Name,  if  possible,  bills  for  raising  customs  or  internal  revenue 
over  which  the  Senate  has  exerted  more  influence  than  the  House. 

iv.  What  is  the  smallest  number  of  senators  who  at  the  present 
time  can  pass  an  ordinary  bill?  ratify  a  treaty?  elect  a  Vice-president? 


CHAPTER  XII 

THE  HOUSE  OF  REPRESENTATIVES 
General  References 

Hamilton  (Madison),  The  Federalist,  Nos.  LH-LVI. 

Meigs,  Grcnvth  of  the  Constitution,  35-68. 

Bryce,  American  Commonwealth  (abd.  ed.),  94-154.  Shows  how  the 
House  actually  works,  and  criticises  methods. 

Story,  Commentaries,  chap.  IX, 

Wilson,  Congressional  Government,  58-192.  Especially  full  on  finan- 
cial procedure. 

McConachie,  Congressional  Committees,  37-258.  Development  and 
present  powers  of  committees.  Shows  advantages  of  committee 
system. 

Burgess,  Political  Science  and  Comparative  Constitutional  Law,  II, 
41-130.  Compares  legislative  departments  of  United  States, 
England,  France,  and  Germany. 

Follett,  Speaker  of  the  House  of  Representatives.  An  excellent  his- 
torical and  descriptive  study. 

Digest  and  Manual  of  the  Rules  and  Practice  of  the  House  of  Repre- 
sentatives.    (Revised  for  each  session.) 

277.   Theory  of  Membership  in  the  House. — The  mem-   Number  in 
bars  of  the  House  of  Representatives  are  chosen,  every  sec-  proportion  to 

population. 

ond  year,  by  those  persons  in  the  states  who  are  allowed  to 
vote  for  members  of  the  lower  house  of  the  state  legisla-  ^'^^^'  ^~^' 
ture,  the  election  always  being  held  on  the  Tuesday  after 
the  first  Monday  in  November  of  the  even  years.  The 
number  of  representatives  which  any  state  shall  have  de- 
pends upon  its  population,  and  reappointment  occurs  every 
ten  years  after  each  census;  but  no  state,  however  few  its 
inhabitants  may  be,  is  left  without  one  representative.     In 

245 


246 


The  American  Federal  State 


Rules  for 

determining 

number. 


addition  to  the  members  from  the  states,  each  territory 
has  a  delegate  who  may  speak  on  any  bill  affecting  his 
territory,  though  he  may  not  vote. 

It  was  suggested  in  the  constitutional  convention  that 
the  members  of  the  lower  chamber  should  be  in  proportion 
to  the  contributions  made  by  each  state  for  the  support 
of  the  central  government;  but  it  met  with  little  favor. 
Instead,  the  basis  of  representation  in  the  House  (the  free 
population  and  three-fifths  of  all  others,  excluding  Indians, 
not  taxed)  was  also  made  the  basis  for  the  assessment  of 
direct  taxes.  By  the  thirteenth  amendment  the  three- 
fifths  rule  disappeared,  as  there  were  no  longer  slaves;  and 
by  the  second  section  of  the  fourteenth  amendment  not  only 
was  this  fact  specifically  mentioned,  but  if  a  state  denied 
to  any  male  inhabitant  of  that  state  who  was  twenty-one 
years  of  age  and  a  citizen  of  the  United  States  the  right  to 
vote,  the  state  should  have  its  membership  in  the  House 
cut  down  in  the  same  proportion.  This  does  not  cover 
exclusion  of  criminals  from  the  suffrage,  nor  does  it  pre- 
vent the  states  from  prescribing  an  educational  test  for 
voters. 


Method  used 
since  1790. 

Hinsdale, 
J§  270-273, 
276-288. 

Story,  Com- 
mentaries, 
\\  676-683 
with  notes. 


278.  Method  of  Apportionment.  —  One  problem  over  which 
the  House  has  had  many  struggles  deals  with  the  apportionment  of 
representatives  to  the  states.  At  the  first,  two  methods  were  suggested  : 
(1)  that  the  whole  population  of  the  country  should  be  divided  by  the 
number  agreed  upon  for  the  ratio;  (2)  that  they  should  divide  the 
population  of  each  state  by  the  number.  It  is  well  known  that  a  bill 
embodying  the  principles  of  the  first  method  was  the  subject  of  the 
first  presidential  veto  in  our  history.  Soon  after,  the  second  method 
was  adopted,  and  has  been  used  ever  since.  Until  1843,  however,  it 
was  customary  to  pay  no  attention  to  fractions,  i.e.  if  the  ratio  was  one 
to  forty  thousand,  and  forty  thousand  went  into  the  population  of  a 
state  six  times  with  a  remainder  of  thirty-seven  thousand,  the  state 
had  only  six  representatives.  Since  1843  those  states  that  have  had 
a  fraction  over  one-half  have  usually  been  given  an  extra  member. 
Reapportionments  demand  a  great  deal  of  mathematical  skill  and 
practical  knowledge  to  give  the  best  results. 

The  following  table  shows  the  number  of  members,  and  the  rate, 
for  each  census :  — 


The  House  of  Representatives 


247 


Census  of 

Ratio 

Membership 

(1789) 

65 

1790 

33»ooo 

105 

1800 

33.000 

141 

1810 

35,000 

181 

1820 

40,000 

212 

1830 

47,700 

240 

1840 

70,680 

223 

1850 

93.420 

233 

i860 

127,381 

241 

1870 

131.425 

293 

1880 

151.9" 

325 

1890 

173.901 

356 

1900 

386 

States  admitted  between  the  censuses  have  always  added  to  the 
membership. 

279.  Term  and  Qualification  of  Representatives.  —  Rep- 
resentatives are  chosen,  on  the  Tuesday  after  the  first  Mon- 
day of  November,  for  a  term  of  two  years,  beginning  the 
fourth  of  the  following  March.  By  special  permission  of 
Congress  three  states  are  allowed  to  hold  their  elections 
earlier  in  the  fall. 

Odd  as  it  appears  to  us,  there  was  scarcely  any  other 
clause  of  the  Constitution  which  encountered  more  vigorous 
opposition  in  New  England  than  the  one  making  the  term 
two  years.  So  accustomed  had  the  people  of  that  section 
become  to  annual  elections,  and  so  much  did  they  fear 
that  longer  terms  meant  loss  of  liberty,  that  it  required  very 
^reat  persuasive  power  to  overcome  the  objections.  No 
ine  believes  now  that  the  term  is  too  long. 

Members  of  the  House  must  be  at  least  twenty-five  years 
of  age,  have  been  citizens  of  the  United  States  for  the  seven 
years  preceding  their  election,  and  shall  be  inhabitants  of 
the  states  from  which  they  were  chosen.  Custom  requires 
that  they  shall  be  inhabitants  of  their  congressional  dis- 


Date  of  con- 
gressional 
elections. 


Objection 
to  biennial 
elections 
(1788). 


Qualifica- 
tions of 
representa- 
tives. 


248 


The  American  Federal  State 


Story,  Com- 
mentaries, 
}§  617-627. 

The  Ameri- 
can idea  of 
local  repre- 
sentation. 

Cf.  Bryce, 
143-146. 


Election 
by  general 
ticket. 

Hinsdale, 
hh  295-299. 


tricts  as  well.  This  precludes  the  method  often  used  in 
England  and  France  of  selecting  some  prominent  politician 
who  may  be  a  resident  of  any  part  of  the  country.  The 
American  usage  is  a  natural  outgrowth  of  our  ancestors' 
idea  that  there  was  no  representation  at  all  unless  each  dis- 
trict had  one  of  its  inhabitants  to  represent  it.  That  idea 
was  maintained  against  the  English  custom  of  virtual  i^p- 
resenlation  in  pre-revolutionary  times,  and  still  possesses 
great  vitality.  It  would  often  be  possible  to  secure  better 
talent  by  the  English  method;  and  restriction  to  the  resi- 
dents of  the  district  may  seriously  injure  a  party  in  the 
House  by  excluding  some  prominent  leader  whose  distr-ct 
has  been  altered  with  the  intention  and  result  of  causing 
his  defeat.  The  American  custom  has  another  disadvan- 
tage in  that  the  representatives  are  apt  to  consider  them- 
selves the  special  guardians  of  their  districts,  and  they 
may,  consequently,  favor  a  measure  which  would  benefit 
their  district  at  the  expense  of  the  country  at  large.  On 
the  other  hand,  our  practice  leads  to  the  protection  of  local 
interests  where  no  national  ones  are  involved,  it  makes  the 
participation  of  the  people  in  the  national  government 
more  real,  and  it  fixes  responsibility  by  making  each  repre- 
sentative directly  accountable  to  this  constituency.  But 
even  if  the  disadvantages  were  greater,  the  desire  for  direct 
representation  is  so  interwoven  with  the  evolution  of  de- 
mocracy in  this  country  that  a  change  can  come  only  with 
a  considerable  modification  of  political  conditions. 

280.  Congressional  Districts. — The  states  have  been 
compelled  to  elect  representatives  from  districts  only  since 
1842.  Before  that  year  many  of  them  voted,  by  general 
ticket  of  the  whole  state,  for  the  number  to  which  the  state 
was  entitled.  At  the  present  time  permission  must  be 
obtained  to  elect  "representatives-at-large,"  as  they  are 
called.  But  this  is  often  given  when  a  state,  by  a  new 
apportionment,  has  one  more  member  than  formerly,  in 
order  that  redistricting  may  be  avoided.  A  state  may  even 
elect  all  of  its  representatives  on  the  general  ticket,  when 


The  House  of  Representatives  249 

its  representation  has  been  reduced  and  there  has  been  no 
time  to  rearrange  the  districts. 

Congress  prescribes  that  the  districts  shall  be  as  nearly  Gerryman- 
equal  in  population  as  possible,  and  that  the  territory  shall  ^^^'■"'g- 
be  compact  and  contiguous.  But  it  has  not  been  found 
possible  to  avoid,  in  practice,  the  abuse  popularly  known 
as  "gerrymandering."  This  consists  in  an  attempt,  on  the 
part  of  a  legislature  in  a  state,  to  divide  up  the  state  in  such 
a  way  that  the  dominant  party  controls  far  more  than  its 
proportion  of  the  districts,  being  assured  fair  pluralities  in 
each;  while  the  party  out  of  power  is  left  to  carry  a  very 
few  districts  by  very  large  majorities,  if  it  is  fortunate 
enough  to  elect  any  of  its  candidates. 

281.  Proportional    Representation. — We    hear   quite  a  Unfair  repre- 
little  nowadays  about  proportional  representation,  and  a  mentation, 
great  many  plans  have  been  suggested  by  which  minorities  Commons, 
shall  be  represented.     It  certainly  seems  unfair,  e.g.  that  mentation     ' 
in  California  the  Republicans,  with  139,382  votes,  should  59-62. 
have  six  representatives,  and  the  Fusionists,  with  128,106,    cf.  \\  526- 
should  have  but  one;  or,  as  in  Missouri,  the  Democrats,   527- 

with  286,019  votes,  should  get  twelve  out  of  the  fifteen 
congressmen,  while  the  Republicans,  with  255,795,  have 
only  three. 

One  of  the  proposed  solutions  of  these  inequalities  has  The  Illinois 
been  tried  in  Illinois  for  over  a  quarter  of  a  century  in  the  P'^"* 
election  of  members  of  the  lower  house  of  the  legislature.    Commons, 
Each  senatorial  district  is  given  the  right  to  elect  three 
assemblymen.     Every  elector  in  the  district  has  the  right 
to  cast  three  votes,  for  three  different  persons,  or  all  for 
one,  or  any  way  he  may  choose.    By  this  method  an  average 
minority  can,  by  concentrating  its  vote  on  one  candidate, 
be  sure  of  one  representative. 

282.  Contested  Elections.  — The  Constitution  makes  the  Method 
House  the  judge  of  the  elections,  returns,  and  qualifica-  "^^^ '" 
tionsof  its  own  members.     At  times  these  rights  have  been   elections. 
exercised  with  more  zeal  than  fairness  in  excluding  or  Hinsdale 
unseating  members  of  the  minority.     But,  on  the  whole,    $§  3ia-3i3. 


250 


The  American  Federal  State 


Spofford,  A. 
R.,  ill  Lalor, 
111,83-83. 


Grounds  for 
exclusion. 


Vacancies. 


Organization 
at  beginning 
of  a  Con- 
gress. 


Necessity  for 
an  efficient 
organization. 


the  powers  have  been  used  in  a  judicial  spirit.  In  a  con- 
test the  person  who  holds  the  certificate  of  election  from 
the  governor  of  the  state  is  entitled  to  the  seat  while  the 
case  is  being  tried.  The  contestant  brings  forward  his  evi- 
dence of  irregularities,  and  all  documents  relating  to  the 
subject  are  submitted  to  a  Committee  on  Elections.  On 
report  of  the  committee  the  House  decides  who  is  entitled 
to  the  seat. 

Persons  may  be  excluded  because  they  fail  of  the  con- 
stitutional requirements.  Or  they  may  be  prevented  from 
taking  part  in  the  organization  of  the  House  on  other 
grounds.  This  happened  frequently  during  the  reconstruc- 
tion period,  and  more  recently  in  the  Roberts'  Case  (1900). 
The  dangers  of  abusing  a  power  of  this  kind,  where  the 
qualifications  of  members  are  not  predetermined,  have 
been  so  serious  that  the  House  has  always  hesitated  to  use 
its  power  except  under  very  great  provocation. 

Whenever  a  vacancy  occurs  for  any  reason,  the  state 
executive  is  empowered  by  the  Constitution  to  call  a  special 
election  for  the  purpose  of  filling  it. 

283.  Organization  and  Work  of  the  House.  —  When  a 
Congress  meets  for  the  first  time,  the  House  proceeds  as 
soon  as  possible  to  adopt  a  new  set  of  rules,  following,  of 
course,  to  a  large  extent,  those  formerly  in  use.  The 
House  begins  at  once  to  organize  the  machinery  by  which 
business  is  done.  The  two  most  prominent  parts  of  this 
organization  are  the  speaker  and  the  committees.  The 
speaker  is  the  party  leader  of  the  majority,  and  is  selected 
by  the  caucus  before  Congress  meets.  He  appoints  the 
committees  at  an  early  date. 

The  need  of  a  very  complete  organization  for  doing 
business  must  be  evident  from  the  amount  of  work  brought 
before  each  house.  So  long  as  it  is  expected  that  the  386 
members  come  together  to  make  laws,  and  not  merely  to 
revise  and  approve  laws  submitted  to  them,  they  will  ac- 
complish nothing  unless  the  machinery  is  well  adapted  to 
its  task.    As  discussion  by  the  whole  House  of  the  thousands 


The  House  of  Representatives  251 

of  bills  introduced  at  each  session  is  impossible,  investiga- 
tion must  take  place  in  committees,  to  which  particular 
duties  are  assigned.  If  a  committee  does  not  separate 
the  important  from  the  unimportant,  its  investigation  will 
be  of  no  value,  because  the  House  cannot  then  attend 
to  all  the  bills  reported  to  it.  After  a  committee  has 
brought  up  an  important  measure,  as  there  are  a  good  many 
of  these  altogether,  it  is  necessary  that  the  bill  be  given 
prompt  consideration,  so  that  it  shall  not  delay  something 
else.  The  House  plans  to  give  the  speaker  power  enough 
so  that  unnecessary  obstruction  shall  not  occur,  and  pro- 
vides that  debate  shall  cease,  any  time  the  majority  wish 
it,  by  moving  the  "previous  question."  One  thing  more 
is  necessary.  The  House  must  discriminate  between  the 
bills  reported  to  it,  just  as  the  committees  must  discrimi- 
nate between  those  referred  to  them.  This  may  seem  com- 
paratively simple,  but  it  is  the  exact  opposite.  Over  ten 
years  ago  the  House  gave  up  the  attempt  to  settle  the  matter 
for  itself,  and  gave  to  the  Committee  on  Rules  the  right  to 
arrange  the  order  of  business,  subject  to  the  approval  of 
the  chamber. 

The  growth  of  the  business  of  the  House  shows  why  early  Congresses    Growth  of 
could  spare  more  time  in  debate,  and  why  the  present  House  of  Rep-   business 
resentatives  uses  such  different  methods.     In  Washington's  first  admin-    s'"^^  ^790- 
istration  but  196  bills  were  passed  in  two  Congresses.     As  late  as  the    Reed,  in  N. 
thirty-seventh  Congress  only  a  little  over  a  thousand  bills  and  resolu-   A.  A'.,  164, 
tions  were  introduced  in  the  House  and  Senate.     In  a  single  session    (1^97).  641- 
of  the  fifty-first  Congress  the  house  introduced  12,402  bills  and  joint    ^^' 
resolutions,  the  Senate,  4570,  a  total  of  16,972.     Of  course,  most  of 
these  failed.     Out  of  14,584  proposed  to  the  fifty-fourth  Congress,  only 
948  were  passed  by  both  houses,  though  the  proportion  was  unusually 
small. 

284.  The  Committee  on    Rules. — This    committee    is  Composition 

composed  of  five  leaders  of  the  House,  three  of  whom  are  ^"'^  power, 

from  the  majority,  with  the  speaker  as  chairman.     In  one  Foiiett, 

sense  the  committee  is  a  kind  of  directive  body  which  X'/z'^/A' 

selects  the  subjects  that  the  House  shall  consider  not  by  274-280. 


252 


The  American  Federal  State 


McCona- 
chie,  Cong. 
Committees, 
191-207. 


Ways  in 
which  the 
Committee 
on  Rules 
may  use  its 
power. 


preparing  and  introducing  bills,  as  is  done  by  the  English 
cabinet,  but  by  dictating  what  bills  reported  by  regular 
committees  shall  receive  consideration.  As  we  have  seen, 
its  power  grew  out  of  the  need  of  having  a  head  for  the 
House,  to  do  the  planning  and  arranging  for  it.  If  this 
task  had  not  been  given  to  the  Committee  on  Rules,  it 
would  have  been  assigned  to  some  other  body,  which  might 
have  absorbed  the  power  now  exercised  by  the  rules,  as 
well  as  those  which  at  present  belong  to  the  speaker,  which 
will  be  enumerated  presently. 

McConachie,  in  his  instructive  book  on  Congressional  Committees, 
shows  clearly  the  process  by  which  the  Committee  on  Rules  came  to  be 
what  it  is.  On  its  composition  and  powers  he  says  (pp.  200-205)  • 
"The  Committee  on  Rules  consists  of  five  wise  and  experienced  lead- 
ers. They  represent  in  the  House  a  solution  of  vexed  problems  similar 
to  that  which  some  of  our  great  cities  have  been  adopting;  that  is,  the 
concentration  of  power  in  a  few  hands,  so  that  clear  responsibility  may 
be  fixed,  and  energetic,  able  administration  secured." 

"  The  Committee  on  Rules  is  in  a  position  to  exercise  the  lion's  share 
of  the  veto  power  which  decides  what  legislative  proposal  shall  be  re- 
jected. Therein  lies  the  chief  element  of  its  strength.  If  it  determines 
to  pigeon-hole  a  bill  upon  the  calendar,  it  needs  only  to  maintain  silence, 
or  engage  or  cajole  the  House  with  other  measures.  If  a  proposition  to 
which  it  is  hostile  is  on  the  eve  of  being  brought  upon  the  floor  by  an- 
other committee,  it  may  exercise  its  superior  privilege  to  claim  attention 
for  different  business.  If  the  filibuster  is  abroad,  and  it  is  in  sympathy 
with  him,  it  may,  as  the  only  authority  which  can  check  his  career  by 
a  special  order,  simply  neglect  to  exercise  its  functions." 

"  But  to  observe,  on  the  other  hand,  the  positive  side  of  its  power : 
The  pettiest  claim  on  the  private  calendar  might  find,  through  its  favor, 
precedence  over  the  greatest  appropriation  bill;  with  its  aid  a  despised 
Committee  on  Expenditures  could  push  aside  the  venerable  [Committee 
on]  Ways  and  Means.  '  It  can  prepare  a  bill  in  the  Speaker's  room,'  de- 
clares a  Representative,  '  and  say  to  the  committee  which  would  ordi- 
narily have  charge  of  the  subject :  "  take  this  or  nothing."  '  Among  the 
more  powerful  committees  of  coordinate  privilege,  that  one  prevails  which 
gets  the  alliance  of  the  [Committee  on]  Rules.  While  the  ability  of  the 
other  committees  to  effect  changes  in  the  [Committee  on]  Rules  is  small, 
its  opportunities  for  stripping  away  their  powers  and  otherwise  weak- 
ening them  is  large,  as  for  example  by  increasing  their  size  until  they 
are   unwieldy.     If  the   minority   begins   old-time   filibustering  tactics 


The  House  of  Representatives  253 

against  a  bill,  three  men  of  the  [Committee  on]  Rules  may  at  once 
write  out  a  brief  resolution  which  claims  the  floor  even  against  a  con- 
ference report  or  the  reading  of  the  journal,  which  demands  a  vote 
without  one  delaying  word  or  motion,  which  fixes  for  the  opposed 
measure  a  time  of  debate,  however  brief,  and  an  opportunity  of  amend- 
ment, however  limited,  before  it  is  put  upon  its  final  passage.  It  is 
not,  therefore,  a  matter  of  surprise  that  the  House,  in  the  earlier  days 
of  the  Fifty-fourth  Congress,  passed  two  important  measures,  the  tariff 
bill  and  the  bond  bill,  with  a  rapidity  unparalleled,  probably,  in  all  its 
previous  history." 

285.   The  Power  of  the  Speaker.  —  Since  the  speaker  is  Three 

the  chairman  of  the  Committee  on  Rules,  he  is  naturally  sources  of 

^    power, 
the  most  important  member  of  the  most  powerful  committee 

of  the  House.     But  he  possesses  other  powers  entirely  dis-   j^?"'  ^°'*~ 

tinct  from  these,  which  coupled  with  them  give  him  a 

...  ...  r,M  r    ,  •  Foilett, 

position  almost  of  dictator.      1  he  sources  of  this  power  are   speaker  of 

chiefly  three:  (i)  He  appoints  all  of  the  committees  and  the  H.of  R., 
selects  the  chairmen.  (2)  He  assigns  to  the  committees  the  ^  ^^' 
bills  that  the  House  wishes  to  commit.  This  gives  him  a 
chance  within  certain  limits  to  discriminate  between  com- 
mittees that  are  favorable  to  his  policy  and  those  which  are 
known  to  be  lukewarm  or  unfavorable.  (3)  The  speaker 
recognizes  whom  he  pleases.  The  House  does  not  use  the 
custom  that  the  first  person  to  address  the  speaker  shall 
have  the  floor.  There  may  be  a  dozen  asking  for  the  privi- 
lege of  speaking  or  of  making  a  motion,  but  only  the  one 
whom  the  speaker  recognizes  has  the  right  to  address  the 
House.  The  speaker  can  in  this  way  favor  certain  legislation 
and  obstruct  bills  to  which  he  is  opposed  without  the  help 
of  the  Committee  on  Rules.  It  is  now  a  rule  of  the  House 
that  persons  who  are  present  and  not  voting  may  be  counted 
to  make  a  quorum.  Before  this  rule  was  adopted  it  was 
possible  for  a  minority  simply  by  refraining  from  voting 
to  interfere  with  the  conduct  of  business  very  effectually. 
Had  it  not  been  for  the  position  of  the  speaker  as  pre- 
siding officer,  and  as  head  of  the  Committee  on  Rules, 
it  is  doubtful  whether  the  majority  could  have  protected 
itself  in  this  way. 


254 


The  American  Federal  State 


Growth 
necessary 
and  will 
continue. 

Hart,  Essays 
on  Gov't.,  I. 

Follett. 
Speaker  of 
the  H.  of  R. 
chap.  III. 


286.  Growth  of  the  Speaker's  Power. —The  speaker  was  orig- 
inally, like  his  English  prototype,  a  mere  moderator,  whose  duty  was 
to  preside  impartially  over  the  deliberations  of  the  House.  But  before 
the  first  Congress  finally  adjourned  he  had  been  given  the  right  to  ap- 
point committees.  By  degrees  he  became  more  and  more  closely  iden- 
tified with  his  party,  and  less  effort  was  made  to  give  the  minority  an 
equal  share  in  the  work  of  even  minor  committees.  The  increase  of 
business  made  necessary  the  exercise  of  greater  power  by  the  speaker 
on  the  floor  of  the  House.  At  length  it  was  found  advisable,  in  the 
eighties,  to  give  him  and  his  colleagues  on  the  Committee  on  Rules 
the  right  to  arrange  the  order  of  business  beforehand.  As  the  speaker 
dominates  this  committee,  and  as  the  committee  controls  most  of  the 
business  of  the  House  not  in  the  hands  of  the  speaker,  we  have  an 
illustration  of  one  man  power  seemingly  at  variance  with  our  whole 
theory  of  popular  government.  This  concentration  of  power  shows 
that  political  bodies  need  effective  organization,  even  when  they  are  as 
small  as  the  House  of  Representatives;  and  that  if  no  suitable  organiza- 
tion is  provided,  one  will  be  developed  such  as  the  situation  demands. 
The  lower  branch  of  Congress  is  not  a  permanent  body  in  any  sense, 
for  usually  the  majority  of  its  members  are  serving  their  first  term. 
Consequently,  leaders  are  more  necessary,  and  must  be  given  more 
power  than  would  be  the  case  were  the  term  of  representatives  longer 
or  reelection  more  common.  We  cannot  expect  soon  to  see  this  con- 
centration of  power  cease.  It  will  probably  increase,  yet  there  is  no 
real  danger  to  good  government  in  these  changes,  for  it  is  better  to 
give  a  few  persons  a  great  deal  of  power,  making  them  correspondingly 
responsible,  than  to  have  that  power  so  distributed  among  many  that 
little  is  accomplished,  and  yet  we  cannot  tell  whom  to  blame  for  what 
goes  wrong,  or  whom  to  reward  for  faithful  service.  So  long  as  the 
speaker's  term  is  short,  and  he  is  directly  responsible  to  the  House  and 
indirectly  to  the  people,  we  need  have  little  fear  that  his  power  will 
prove  a  menace  to  liberty. 


Develop- 
ment. 

McCona- 
chie,  Cong. 
Committees, 
349-358 
(table). 


287.  The  Committees. — The  first  standing  committees 
were  selected  by  lot  in  1789.  In  all  of  the  colonies  and 
early  state  legislatures,  and  in  the  continental  Congress, 
committees  had  been  used  for  the  transaction  of  business; 
and  they  were  found  indispensable  in  the  House.  In  1790 
their  appointment  was  given  to  the  speaker.  By  18 16,  the 
year  in  which  the  Senate  began  using  standing  committees, 
there  were  twenty  in  the  House;  by  1865  there  were  forty; 
and  in  1900  the  standing  committees  numbered  fifty-six. 


The  House  of  Representatives 


255 


The  majority  in  each  case  belong  to  the  same  political  party 
as  the  speaker,  so  that  the  minority  have  nothing  to  say  in 
committee  work  relative  to  partisan  questions.  The  com- 
mittees are  composed  of  an  odd  number  of  persons,  vary- 
ing from  five  on  the  Committees  on  Rules  and  Mileage  to 
seventeen  on  several  others.  The  favorite  number  is  thir- 
teen. The  more  important  ones  have  rooms  assigned  them, 
and  hold  meetings  at  certain  hours  on  specified  mornings. 
It  is  in  these  busy  committee  meetings  that  most  of  the 
real  business  of  the  House  is  transacted.  During  these 
sessions  of  the  committees  they  are  in  conference  with 
officials  belonging  to  some  department  of  the  administra- 
tion, whose  work  deals  with  the  same  subject  as  the  com- 
mittee. Here  the  committee  listens  to  persons  who  are 
interested  in  the  bill  under  discussion,  examines  witnesses, 
and  makes  a  complete  investigation,  accompanied  by  full 
expression  of  opinion  by  the  leaders  of  the  committee. 
The  meetings  are  often  secret,  but  frequently  open  to  those 
who  have  business  relations  with  the  committee. 

288.  Criticisms  of  the  Committee  System.  —  Our  com- 
mittee system  of  government  has  called  forth  unfavorable 
comment  from  able  and  fair-minded  writers,  who  have 
devoted  a  great  deal  of  time  to  the  study  of  American 
political  methods.  The  most  prominent  of  these  is  Mr. 
Bryce,  who  mentions  several  objections  to  the  committee 
system,  as  follows :  "  It  destroys  the  unity  of  the  House  as 
a  legislative  body."  "It  prevents  the  capacity  of  the  best 
members  from  being  brought  to  bear  upon  any  one  piece 
of  legislation,  however  important."  "It  cramps  debate." 
"  It  lessens  the  cohesion  and  harmony  of  legislation."  "  It 
gives  facilities  for  the  exercise  of  underhand,  and  even 
corrupt  influence."  "It  reduces  responsibility."  "It 
lowers  the  interest  of  the  nation  in  the  proceedings  of  Con- 
gress," and  "the  country  of  course  suffers  from  the  want  of 
the  light  and  leading  on  public  affairs  which  debates  in 
Congress  ought  to  supply."  Each  of  these  criticisms  is 
briefly  discussed  in  his  American  Commonwealth  to  which 


Composi- 
tion and 
methods. 

Bryce,  115- 
119. 

Spofford,  A, 
R.,  in  Lalor, 
III,  78-79. 


Statement  of 
criticisms. 

Bryce,  119- 
122,  126-129. 

Wilson, 
Cong.  Gov't. 
70-72,  79-85, 
91  r/  seq. 


256 


The  American  Federal  State 


Why  the 
defects  are 
not  danger- 
ous. 


The  routine 
for  bills. 

Wilson, 
Cong.  Gov't., 
64-79. 


the  student  is  referred  for  further  information  concerning 
them. 

The  justice  of  the  criticisms  cannot  well  be  questioned, 
severe  as  they  appear;  but  the  defects  are  not  so  serious 
as  they  might  seem,  for  two  reasons,  (i)  The  committee 
system  is  an  absolute  necessity  for  a  legislative  body  which 
does  not  restrict  the  right  of  initiation  of  its  individual 
members,  and  confer  upon  some  set  of  persons  sole  power 
to  bring  in  important  bills.  The  committees  have  been 
evolved  as  the  best  means  of  reconciling  legislative  free- 
dom of  congressmen  with  increase  of  business.  If  we  were 
willing  to  concentrate  most  of  the  powers  of  initiation  in 
one  committee,  we  could  undoubtedly  make  it  more  re- 
sponsible than  any  of  ours  now  are;  but  we  should  run  a 
greater  risk  of  developing  class  rule,  which  we  have  sought 
above  all  else  to  avoid,  during  the  nineteenth  century  at 
least.  (2)  Most  of  the  faults  enumerated  above  will  be 
avoided,  if  certain  changes  are  made  by  which  some  cen- 
tral directive  committee  is  given  control  over  the  others 
for  the  purpose  of  harmonizing  legislation.  The  most  im- 
portant objections  to  our  system  are  the  lack  of  unity  and 
the  impossibility  of  fixing  responsibility.  Such  a  com- 
mittee would  be  able  to  prevent  conflicting  and  contradic- 
tory legislation  without  altering  greatly  present  methods 
and  processes.  It  could  of  course  be  responsible  only  to 
the  House  or  to  the  people  through  the  representatives,  as 
it  would  have  no  power  outside  of  the  House. 

289.  The  Course  of  a  Bill.  — How  is  this  machinery  of 
the  House  used  in  doing  business?  In  the  first  place  it 
has  nothing  to  do  with  introducing  bills,  for  every  bill  is 
presented  by  some  representative  acting,  it  may  be,  for 
some  committee.  Members  are  not  allowed  to  bring  in 
bills  whenever  they  please,  but  are  restricted  to  particular 
days.  The  bill  is  taken  to  the  clerk  beforehand,  and  when 
the  roll  by  states  is  called,  at  the  proper  time,  the  clerk 
reads  not  the  bill,  but  the  title.  It  is  then  sent  to  the 
proper  committee,  without  delay  if  but  one  committee  asks 


The  House  of  Representatives  257 

for  it.  When  the  bill  is  of  such  a  nature  that  it  might  be 
referred  to  either  of  two  committees,  and  of  such  impor- 
tance that  both  committees  want  it,  delay  may  be  occa- 
sioned by  the  strife  of  the  chairmen  for  the  bill.  Most  of 
the  measures  thus  committed  are  never  heard  of  again,  are 
**  killed  in  committee";  but  many  of  them  are  reported, 
favorably  or  unfavorably,  to  the  House.  They  must  then 
go  through  second  readings,  unless  they  have  already  done 
so,  and  a  few,  after  debate  and  possibly  amendment,  are 
brought  to  a  vote. 

290.  The  Transaction  of  Business. — The  House  has  its  Allotment  of 
time  well  divided  up  by  rule  and  custom.     The  first  and  Vj"* '"  ^^^ 

^      ^  House. 

third  Mondays  are  set  aside  for  the  introduction  of  bills. 
The  other  Mondays  are  devoted  to  bills  relating  to  the  ^*^^'^  jg. 
District  of  Columbia.     Friday  afternoons  are  given  to  pri-    (1897),  646. 
vate  bills,  aside  from  pensions,  which  are  taken  up  Friday 
evenings.     The  other  days  are  devoted  to  public  business. 

The  House  meets  at  noon,  and  after  prayer  and  the  read-  The  order 
ing  of  the  Journal,  the  speaker  recognizes  the  chairman  of  o^i'"^'""*' 
the  committee  who,  according  to  the  calendar,  has  the  right  Reed,  in  N. 
to  the  floor.     The  latter  has  selected  some  bill  or  bills   (I'go?)  646- 
whose  passage  he  deems  essential  to  the  proper  perform-  650. 
ance  of  his  committee's  work.     He  has  an  hour  to  present 
the  measure,  though  he  does  not  often  take  as  much  time 
as  that  himself.     He  may  have  all  of  that  day  and  of  the 
next,  provided  he  is  not  interrupted  by  a  report  from  some 
other  committee  whose  chairman  has  the  right  to  demand 
immediate  consideration  for  the  bill  reported.     At  any  rate, 
the  first  chairman  has  the  claim  to  parts  of  two  days,  and 
before  his  time  is  up  he  usually  moves  the  previous  question, 
which  stops  debate  and  makes  it  necessary  for  the  House  to 
decide  whether  the  original  motion  shall  be  put  to  a  vote. 

291.  The  Committees  of  the  Whole.  — Some  of  the  business   Work  and 
of  the  House  is  done  in  what  are  known  as  the  Committees  of  the    regulations. 
Whole.    There  are  two  of  these  :  one  caring  for  private  bills,  and 

the  other  for  public  bills  relating  to  finance.  The  latter  is  of  course 
much  the  most  important. 


258 


The  American  Federal  State 


McCona- 
chie,  Cong. 
Committees, 
99  et  seq. 


Exclusive 
power  of  the 
House. 

Hinsdale, 
§§  331-334- 


Relation  of 
revenue  and 
appropria- 
tion com- 
mittees. 

Bryce,  131- 
135- 

Wilson, 
Cong.  Gov't, 
136,  146-163. 


DiflFerent 
forms  of 
taxes  used. 


The  regulations  for  these  conimittees  are  not  the  same  as  the  rules 
of  the  House.  The  speaker  always  calls  some  one  else  to  the  chair,  as 
he  sometimes  does  in  the  House  proper.  But  the  presiding  officer 
cannot  make  any  one  attend  the  committee,  neither  does  he  have  the 
right  to  maintain  order  by  force.  The  quorum,  instead  of  being  one- 
half  the  members,  is  only  one  hundred.  Speech  is  not  subject  to  just 
the  same  limitations  as  in  the  Hovise,  and  consequently  more  opportu- 
nity is  given  for  discussion.  When  the  committee  has  finished  the 
business  in  hand  it  rises  and  reports  to  the  House,  which  is  in  no  way 
bound  by  the  action  of  the  committee. 

293.  The  Raising  of  Revenue.  —  Among  the  special 
powers  conferred  upon  the  lower  branch  of  Congress  by  the 
Constitution  is  the  right  to  originate  all  bills  for  the  raising 
of  revenue.  These  bills  may  be  amended  by  the  Senate. 
In  practice,  measures  for  the  raising  or  appropriation  of 
money  originate  in  the  House,  and  the  Senate  alters  them 
to  suit  its  own  plans,  so  that  the  House  may  fail  to  recog- 
nize the  bill  sent  in  by  the  upper  house  as  the  one  passed 
some  time  before. 

The  determination  of  the  amount  of  revenue  needed  to 
run  the  government,  and  the  methods  by  which  the  money 
shall  be  raised,  is  the  delicate  task  assigned  the  Committee 
on  Ways  and  Means.  It  is  the  custom  in  this  country  to 
have  the  money  raised  by  one  committee  and  spent  by  a 
dozen  others.  Such  a  system  does  not  guarantee  that  the 
sums  received  and  expended  will  be  the  same,  nor  does  it 
assure  a  surplus  in  case  of  a  great  difference  between  the 
two  amounts.  The  best  that  the  Committee  of  Ways  and 
Means  can  do  is  to  raise  as  much  as  the  government  seems 
to  need.  It  cannot  tell  how  extravagant  the  different 
appropriation  committees  may  be,  singly  or  together,  as 
they  make  no  attempt  to  work  in  harmony  with  the  Ways 
and  Means.  If  a  deficit  occurs,  money  must  be  borrowed, 
and  perhaps  the  new  Ways  and  Means  will  devise  other  ways 
of  drawing  money  from  the  people's  pockets. 

293.  The  Sources  of  Revenue.  —  It  will  be  noticed  that 
in  national  finance  the  committee  for  raising  revenue  must 
wait  upon  the  committees  who  expend  it.     A  nation  is  not 


The  House  of  Representatives  259 

like  an  individual,  whose  expenditures  must  depend  upon  cf.  §}  578- 
his  revenue.  It  has  certain  governmental  duties  to  per-  584- 
form,  and  in  performing  them  it  thinks  first  of  carrying  on 
its  work,  and  second  of  raising  the  money  to  do  it.  In 
other  words,  expenditure  determines  the  income.  If  the 
expense  is  unavoidable,  and  the  revenue  is  not  forthcoming, 
the  government  sooner  or  later  goes  to  pieces;  but  in 
modern  States  the  question  is  not  whether  the  money  can 
be  obtained,  but  by  what  means.  In  the  United  States  we 
have  derived  the  greatest  part  of  our  revenue  from  duties 
on  imports.  Under  Federalist  rule,  and  since  1861,  inter- 
nal revenue  has  been  very  important.  The  public  lands 
have  yielded  some,  while  temporary  income  and  direct 
taxes  have  been  used.  Practically  every  cent  brought  into 
the  treasury  has  been  by  indirect  taxes,  levied  almost  as 
much  in  the  interest  of  industrial  development  as  for  the 
sake  of  revenue. 

294.  Difficulties  encountered  by  the  Committee  on  Ways  Defects  in 

and  Means.  —  All  of  these  indirect  sources  are  liable  to  financial 

methods. 

great  fluctuations,  according  to  the  extent  of  the  business 
in  the  goods  upon  which  the  tax  is  levied.  So  the  Com-  sciencTof' 
mittee  on  Ways  and  Means  is  beset  by  difficulties,  or  would  Finance, 
be  if  it  considered  these  objections  worthy  of  that  name.  ^29-132- 
(i)  It  must  raise  an  amount  of  money  for  the  government 
when  it  does  not  know  how  much  is  needed.  (2)  Its  well- 
planned  calculations  may  be  ruined  by  some  unforeseen 
business  change.  (3)  In  the  raising  of  its  revenue  from 
at  least  one  source,  the  revenue  feature  is  less  important 
than  the  protection  feature.  This  is  true  even  of  the  bills 
designed  during  late  years  as  free  trade  measures.  (4)  If 
it  attempts  a  nice  adjustment  of  income  to  appropriations, 
the  changes  introduced  by  the  Senate,  which  even  a  con- 
ference committee  cannot  induce  them  to  drop,  spoil  the 
whole  scheme.  So  the  committee  does  not  attempt  to 
equalize  the  two  sides  of  the  balance  —  a  problem  it  can- 
not solve  —  but  is  content  if  it  gets  bills  passed  to  meet 
general  needs. 


26o 


The  American  Federal  State 


Surpluses  in 
the  United 
States. 


Its  distribu- 
tion among 
many  com- 
mittees. 

McCona- 
chie,  Cong. 
Corn's,  i8i- 
i86. 

Wilson, 
Cong.  Gov't, 
163-169. 


Fortunately  for  us,  the  United  States  government  has  always  had 
all  the  money  it  needed  in  times  of  peace,  and  the  Committee  on 
Ways  and  Means  has  not  had  so  great  a  burden  as  might  at  first  be 
thought.  In  fact,  our  Congresses  have  had  as  much  trouble  in  expend- 
ing the  surplus  as  in  raising  enough  money.  It  can  readily  be  seen 
that  this  command  of  a  full  purse  has  given  the  national  government 
the  opportunity  of  using  its  power  to  better  advantage,  and  has  greatly 
aided  in  the  development  of  nationality.  Had  the  states  been  able  to 
levy  their  taxes  as  indirectly  as  Congress  has  done,  they  might  have 
insisted  upon  a  stricter  construction  of  the  Constitution.  Certainly 
the  national  sphere  of  governmental  powers  would  not  have  been  the 
same  if  we  had  used  the  plan  of  the  new  Australasian  constitution, 
which  gives  the  federal  government  the  exclusive  right  to  levy  indi- 
rect taxes  upon  imports,  but  compels  it  to  distribute  four-fifths  of  the 
revenue  among  the  states  of  the  federation. 

295.  Regulation  of  Expenditure.  —  Before  1865  the 
Committee  on  Ways  and  Means  looked  after  the  appropria- 
tion of  funds  as  well  as  its  present  duties.  During  that 
year  a  separate  appropriation  committee  was  created.  For 
a  time  it  had  sole  charge  of  appropriations,  but  the  Com- 
mittee on  Rivers  and  Harbors  made  good  its  claim  to  the 
bill  granting  money  for  rivers  and  harbors.  Little  by  little 
the  Committee  on  Appropriations  has  been  deprived  of  its 
duties,  till  now  it  has  thirteen  associates  which  take  charge 
of  the  appropriation  of  funds  for  particular  purposes. 


Process  of 
determining 
the  amount 
of  appropria- 
tions. 

Adams, 
Science  of 
Finance, 
123-129. 


It  is  customary  for  the  Secretary  of  the  Treasury  to  have  the  chief 
officials  in  the  Treasury  and  other  departments  make  up  in  the  fall  of 
each  year  estimates  of  the  amount  of  money  needed  for  the  year  begin- 
ning the  first  of  the  following  July.  These  estimates  are  bound  to- 
gether, and  sent  with  the  Secretary's  report  to  Congress  when  it  meets. 
These  estimates  are  assigned  to  the  proper  committees,  and  are  usu- 
ally the  bases  of  the  committees'  report,  but  the  committees  are  not 
bound  by  the  estimates  of  the  executive  department.  When  a  bill 
making  appropriations  is  reported  to  the  House,  that  body  considers  it 
in  Committee  of  the  Whole  on  the  state  of  the  Union.  In  times  past 
this  consideration  has  been  careful  and  thorough,  but  with  the  multi- 
plication of  appropriation  bills  the  House  has  given  less  attention  to  the 
subject.  It  might  be  stated  that  the  committees  usually  recommend  a 
much  smaller  amount  than  that  asked  in  the  estimate.  In  the  Senate 
the  appropriation  is  likely  to  be  increased,  and  finally,  when  the  con- 


The  House  of  Representatives 


261 


ference  committee  reports,  it  is  probably  the  close  of  the  session,  and 
the  conference  bill  is  passed  without  much  debate  on  its  merits. 

The  amount  and  the  sources  of  our  revenue  at  different  periods  is 
shown  in  the  following  table  (last  three  figures  omitted  except  in 
totals) :  — 


Year 

Customs 

Internal 
Revenue 

PlBLIC 

Lands 

Miscel- 
laneous 

Total 

»79S 

*  5.588 

J«!475 

$2$ 

«  5.954.534 

1820 

15,006 

106 

$  1,636 

93 

16,840,670 

1850 

39,669 

1,860 

2,064 

43.592,889 

1865 

83,928 

209,464 

997 

26,642 

322,031,158 

1887 

217,287 

118,823 

9.254 

26,034 

371,403,288 

1899 

206,141 

272,487 

37.025 

515,652,666 

The  expenditures  in  the  same  years  have  been  as  follows  — 


Year 

Civil  and 

MiSCEL. 

Indians 

War 
Dbpt. 

Navy 
Dept. 

Pensions 

Int.  on 
Public 
Debt 

Total 

1795 

$  1,401 

12,481 

54" 

J69 

$  2,947 

J  7,309,601 

1820 

2,908 

2,630 

4.388 

3,208 

5.i5» 

18,285.535 

1850 

17,707 

9.687 

7.905 

1,867 

3.782 

40,948,383 

1865 

48,049 

1,030,690 

122,617 

16,348 

77.395 

1,295,099,289 

1887 

91.459 

38,561 

15,141 

75.029 

47.742 

267,932,180 

1899 

132,619 

228,834 

64,814 

139.387 

39,896 

6o5,55>.323 

No  account  is  taken  of  the  receipts  from  the  post-office  or  of  expen- 
ditures for  the  same  except  for  the  excess  above  receipts. 

296.  Reform  of  the  Financial  Methods. — The  financial  meth- 
ods used  by  Congress  have  been  subjected  to  very  severe  criticism. 
The  entire  lack  of  cooperation  between  the  Revenue  and  Appropria- 
tions Committees,  the  inability  of  the  Treasury  department  to  influence 
either  chamber  except  by  suggestions,  which  are  seldom  heeded,  and 
the  opportunities  given  at  every  stage  in  the  preparation  of  the  bud- 
get, as  it  is  called,  to  make  changes  for  which  the  responsibility  can- 
not be  fixed,  have  been  attacked  unmercifully.  Many  writers  have 
made  a  comparison  between  the  British  and  the  American  systems, 
showing  the  advantages  of  the  former.     In  Parliament  a  single  com- 


Criticisms. 

Bryce,  135- 
137. 

Wilson, 
Con£:  Gov't, 
III. 


262 


The  American  Federal  State 


Suggestions 
for  reform. 

Adams, 
Science  of 
Finance, 
168-177. 


The  House 
as  an  elec- 
toral college. 


Election  of 
i8oa 

Channing, 

$  311. 


mittee,  the  Ministry,  prepares  the  bills  for  raising  and  for  expending 
money.  The  members  of  the  House  of  Commons  may  offer  amend- 
ments to  either,  but  in  case  they  are  adopted  the  Ministry  aim  to 
alter  the  second  bill  so  that  the  two  will  practically  balance. 

Dr.  Henry  C.  Adams,  who  is  recognized  as  second  to  no  other 
authority  on  financial  questions  in  the  United  States,  ofiers  these  sug- 
gestions for  improving  our  system :  — 

"  First.  The  first  step  in  this  programme  .  .  .  consists  in  the  estab- 
lishment of  a  budgetary  committee,  which  shall  have  full  and  exclusive 
jurisdiction  over  the  form  of  the  budget  when  presented  to  the  legisla- 
tive body  for  discussion  and  vote." 

He  proceeds  to  show  how  this  committee  may  be  made  responsible, 
and  why  the  task  is  not  too  great  for  one  committee. 

"  Second.  It  further  lies  in  this  plan  that  the  right  of  individual  in- 
itiative of  money  bills,  as  also  the  right  of  indiscriminate  amendment, 
should  be  taken  away  from  the  individual  members  of  the  House  of 
Representatives,  whether  the  House  is  organized  as  a  committee  of  the 
whole  or  in  legislative  session.  In  this  regard  the  practice  in  England 
would  seem  to  meet  the  requirements  of  appropriate  organization." 

"Third.  Better  cooperation  between  the  financial  committee  of  Con- 
gress and  the  Treasury  department,  all  communications  taking  place 
through  the  Secretary  of  the  Treasury."  (Adams's  Science  of  Finance, 
pp.  172-176.) 

297.  Election  of  a  President.  —  Besides  the  special  power 
of  the  popular  chamber  concerning  matters  of  finance,  and 
the  sole  right  of  impeachment,  —  discussed  in  the  previous 
chapter,  —  the  House  of  Representatives  may  be  called 
upon  to  elect  a  President.  This  it  has  done  twice.  When 
the  electoral  college  fails  to  give  any  one  candidate  a 
majority,  the  House  proceeds  to  select  one  from  the  three 
who  stood  highest  on  the  list  of  the  electors.  The  vote  is 
then  taken  by  states,  each  state  having  one  vote. 

In  the  election  of  1800  the  electors  did  not  designate 
whether  the  candidates  voted  for  were  nominees  for  the 
presidency  or  vice-presidency,  they  merely  cast  two  votes. 
As  Jefferson  and  Burr  each  had  seventy-three  votes,  the 
House  was  obliged  to  select  one  of  the  two,  because  it  was 
a  tie.  The  choice  fell  upon  Jefferson  only  after  thirty-six 
ballots.  The  twelfth  amendment  was  adopted  in  1804, 
which  changed  the  method  in  certain  particulars,  and  made  ^ 


The  House  of  Representatives  263 

it  necessary  for  the  electors  to  designate  the  office  of  each 
candidate. 

In  the  election  of  1824  there  were  four  men  who  received  Election  of 
votes  in  the  college.     Jackson  had  ninety-nine,   Adams  ^^**" 
eighty-four,   Crawford    forty-one,    and   Clay   thirty-seven.    Channing, 
The  choice  was  limited  to  the  first  three,  and  as  Clay  held   ^  *  "** 
views  similar  to  those  of  Adams,  by  combining  the  votes 
of  their  followers  Adams  was  elected  by  the  House  without 
difficulty.     It  will  be  easily  perceived  that  the  failure  of 
the  college  to  elect  cannot  recur  under  the  present  Consti- 
tution, unless  there  are  more  than  two  great  parties  or 
during  the  reorganization  of  parties. 

298.  Characteristics  of  the  House. — The  meetings  of  The  House 
the  lower  house  are  held  in  a  large  hall  in  the  south  wing  ^*  ^°''''* 

of  the  Capitol.     The  desks  of  the  members  are  arranged  in  Ford,  Amer. 

semicircular  form  about  that  of  the  speaker,  the  Republi-  ^   ^''  ^^*' 

cans  on  his  left  and  the  Democrats  on  his  right.     When  a 

„  ,  ,    ,  ,  •  Bryce,  io8- 

congressman  gains  the  floor,  he  may  speak  from  his  seat  or  u^, 
from  the  space  before  the  speaker's  desk.     In  either  case 
he  is  likely  to  receive  scant  attention,  as  the  hall  is  almost   con^^.  Gov't, 
always  so  noisy  that  difficulty  is  found  in  hearing  any  but   ^'• 
the  best  speakers.     Unless  the  subject  is  one  of  consider- 
able importance,  the  members  are  quite  often  in  adjoining 
rooms,  or  if  present  are  devoting  their  time  to  something 
else.     For  these  reasons  speaking  and  debate  is  much  less 
prominent  in  the  House  than  in  the  Senate,  where  the 
smaller  room,  and  the  more  orderly  deportment,  give  oppor- 
tunities for  speakers  to  present  their  views  to  advantage. 

According  to  the  Constitution  each  house  is  to  keep  a  journal  of  its  Publications 
proceedings.  At  present  each  has  a  journal  published  fortnightly,  o^  Congress, 
which  gives  a  summary  of  measures  introduced  and  all  votes  taken. 
The  government  also  issues  a  daily  report  called  the  Congressional 
Record.  This  contains  in  full  all  speeches  delivered  in  either  cham- 
ber, as  well  as  speeches  for  which  there  was  not  time  or  which  were 
intended  to  be  printed  only  for  the  use  of  constituents. 

299.  The  House  and  the  Senate.  —  On  account  of  the 
more  popular  character  of  the  House,  we  should  naturally 


264 


The  American  Federal  State 


Sources  of 
strength  and 
weakness  in 
the  House. 

Ford,  ibid., 
243-248. 

Bryce,  138- 
142. 


A  still  more 
centralized 
organization 
probable. 


expect  to  find  it  more  powerful  than  the  Senate;  but,  as 
already  stated,  this  is  not  the  case.  Several  causes  have 
contributed  to  this,  but  none  is  more  potent  than  the  dif- 
ference in  tenure.  The  chief  element  of  the  Senate's 
strength  lies  in  its  permanence.  The  retiring  of  but  one- 
third  of  the  members  at  one  time,  and  the  conservatism  of 
the  upper  branch,  have  developed  an  organization  appar- 
ently less  perfect  than  that  of  the  House,  in  reality  much 
more  efficient.  The  House  has  sought  to  hold  its  own  by 
great  centralization  of  power  in  the  hands  of  its  leaders; 
but  this  concentration  hardly  offsets  the  disadvantages  pro- 
duced by  short  terms  and  a  constantly  changing  membership. 

300.   The  Future  Organization  of  the  House.  — it  may  be 

that  in  time  the  organization  of  the  House  will  be  still  further  centralized 
so  that  it  can  then  dominate  the  Senate.  If  it  were  the  custom  to  reelect 
representatives  in  most  cases,  this  would  probably  be  done  in  the  near 
future,  but  such  a  change  is  not  probable.  It  seems  more  likely  to 
come  through  the  Committee  on  Rules.  That  committee  has  at  pres- 
ent a  great  deal  of  power,  much  of  it  of  a  most  arbitrary  character,  but 
its  control  is  purely  negative.  No  person  and  no  committee  is  respon- 
sible to  it.  In  turn,  it  is  not  directly  responsible  to  the  House.  The 
suggestion  has  been  made  that  something  similar  to  the  British  Minis- 
try might  be  used  in  the  House;  If  the  speaker  and  the  Committee  on 
Rules  were  chosen  not  for  a  fixed  period  of  two  years,  but  were  to  con- 
tinue in  office  only  so  long  as  they  had  the  confidence  of  the  House, 
responsibility  would  be  much  more  definitely  fixed.  If  the  committees 
were  appointed  as  at  present,  and  subject  to  the  oversight  and  control  of 
the  Committee  on  Rules  so  that  they  worked  in  harmony  with  the  latter, 
most  of  the  advantages  of  the  committee  system  would  be  retained  with- 
out the  great  defect  of  a  headless  organization.  The  individual  member 
would  of  course  be  obliged  to  give  up  some  privileges  for  the  sake  of  the 
whole  body.  But  the  House  would  be  less  like  an  army  in  which  each 
corps  works,  to  a  large  degree,  independent  of  every  other;  and  each 
regiment  has,  as  far  as  possible,  a  plan  of  its  own  which  it  seeks  to 
execute. 

QUESTIONS  AND   REFERENCES 

Composition  (§§  277-282) 

a.  Early  apportionments  of  representatives  are  considered  by  Will- 
iams, in  Lalor,  I,  102-111;  Story,  in  his  Commentaries,  §§  676-683, 
especially  notes;  James,  E.  J.,  in  A.  A.  A.,  IX  (1897),  i-4i' 


The  House  of  Representatives  265 

1.  Give  the  advantages  and  disadvantages  of  increasing  the  term  of 
office  for  representatives.  Would  it  be  better  on  the  whole  for  us  to 
adopt  the  English  custom  of  paying  no  attention  to  residence  of  repre- 
sentatives?    Explain  your  answer. 

2.  Can  the  abuse  of  gerrymandering  be  avoided  by  proportional 
representation?  What  would  be  the  effect  of  proportional  representa- 
tion on  the  district  system? 

3.  Would  it  be  advisable  to  confer  upon  the  courts  the  right  to  de- 
cide disputed  elections?  Give  arguments  on  both  sides.  Should  the 
committees  have  more  power  in  collecting  evidence? 

i.  How  many  congressional  districts  are  there  in  your  state  ?  In 
which  one  do  you  live?  What  counties  (if  more  than  one)  are  com- 
prised in  it  ?  How  does  it  compare  in  area  and  population  with 
the  others  of  the  state  ?  (Cong.  Dir.,  some  Pol.  Als.,  State  Blue 
Book.) 

ii.  Who  is  your  representative  at  present?  How  many  terms  has 
he  been  in  Congress?  On  what  committees  does  he  serve?  For  what 
bills  has  he  been  directly  responsible  ?  Compare  the  vote  at  the  last 
election  with  those  of  previous  ones.     (Last  Cong,  Dir.  and  Pol.  Als.) 

iii.  When  do  disputed  elections  become  especially  important?  How 
many  seats  were  contested  at  the  beginning  of  the  last  session?  Were 
the  members  of  the  dominant  party  seated  in  every  case  ? 

Organization  and  Work  (§§  283-291) 

a.  Make  a  study  of  the  lower  houses  in  France,  Germany,  and  Eng- 
land based  upon  Wilson's  The  State,  §§  402-405  (Fr.),  §§  516-529 
(Ger.),  §§  890-909  (Eng.);  and  Burgess's  Comparative  Constitutional 
Law,  Vol.  n,  Div.  II,  chap.  II  (Eng.),  chap.  Ill  (Ger.),  chap.  IV 
(Fr.),  chap.  V  (comparative  study  of  all). 

1.  Can  you  suggest  any  system  that  can  be  or  could  have  been  sub- 
stituted for  that  of  the  committees?  Are  the  defects  of  our  system 
inherent  in  it?  are  they  unavoidable  because  of  our  political  ideals  and 
methods,  or  may  they  be  remedied?  (Read  references  above,  if  possi- 
ble, before  answering.) 

2.  What  means  have  the  House  and  the  people  of  making  the  Com- 
mittee on  Rules  and  the  speaker  responsible?  Is  or  is  not  an  increase 
of  their  authority  dangerous,  and  why?  Would  it  be  best  to  give  the 
Committee  on  Rules  the  same  right  as  the  English  ministry  to  intro- 
duce measures?  How  can  we  best  remedy  the  two  serious  defects  of 
our  system,  viz.,  lack  of  unity  and  lack  of  power  to  fix  and  enforce  re- 
sponsibility, with  or  without  changing  the  committee  system? 


266  The  American  Federal  State 

3.  Give  reasons  why  private  bills  should  be  left  as  much  as  possible 
to  the  committees.  Does  the  House  devote  too  great  a  proportion  of 
its  time  to  these  bills? 

i.  Name  in  order  the  six  committees  you  consider  most  important. 
Who  is  chairman  of  each?  What  members  from  your  state  are  on  any 
of  them,  and  which  ones?  Do  any  of  the  committees  appear  to  be  sec- 
tional in  their  composition? 

ii.  Who  is  the  speaker  of  the  House?  From  what  slate  does  he 
come?  Who  were  his  rivals  for  the  speakership?  Has  any  section 
had  more  than  its  share  of  speakers  since  i860?     (See  Appendix  C.) 

iii.  Mention  at  least  three  instances  of  public  bills  passed  by  the  last 
Congress.  Give  four  classes  of  private  bills.  Mention  recent  cases  of 
filibustering  in  Senate  or  House. 

iv.  To  what  committees  would  the  following  bills  naturally  be  as- 
signed (in  case  it  might  be  appropriately  given  to  more  than  one, 
name  all) :  Nicaragua  Canal  bill ;  bill  appropriating  ^tpfioo  for  a 
public  building  ;  a  pension  bill ;  bill  enlarging  powers  of  the  Inter- 
state Commerce  Commission;  amendment  to  the  Constitution;  bank- 
ruptcy bill ;  tariff  bill  for  Philippine  Islands ;  bill  providing  for 
resurvey  of  public  lands,  for  deepening  the  channel  of  the  Missis- 
sippi, granting  land  to  a  transcontinental  railroad,  arranging  for  the 
purchase  of  armor  plate,  and  revising  the  law  of  copyright. 

Special  Powers  (§§  292-300) 

1.  Can  we  ever  make  any  person  or  set  of  persons  absolutely  re- 
sponsible for  money  bills  under  our  present  system  and  with  present 
conditions?  Explain.  Do  we  have  sufficient  guarantee  that  the 
money  will  be  well  spent? 

2.  What  would  be  the  advantages  of  giving  the  executive  depart- 
ments more  influence  over  the  financial  operations  of  Congress?  the 
disadvantages  ? 

3.  Why  was  the  election  of  a  President,  in  case  the  college  failed  to 
select  some  one,  left  to  the  House  of  Representatives?  Why  was  the 
vote  to  be  taken  as  it  is?  Have  the  persons  chosen  commanded  any 
less  confidence  on  account  of  the  method  of  choice? 

i.  Consult  the  tables  in  §  295.  What  is  the  principal  source  of 
revenue  at  the  present  time  ?  Which  one  can  be  increased  most 
easily?    To  what  extent  has  direct  taxation  been  used  ? 

ii.  What  item  of  expenditures  has  been  greatest,  taking  our  history 
as  a  whole  ?  Which  items  are  increasing  ?  which  ones  decreasing  ? 
Should  any  be  curtailed,  and  if  so,  which? 


The  House  of  Representatives  267 

iii.  What  is  the  amount  of  the  public  debt  ?  Of  what  parts  is  it 
composed?  What  was  the  size  of  the  debt  in  1835  '  •'^  ^^^7  "*  '" 
1890?  Is  it  increasing  or  diminishing  now?  Why  is  it  thought  that  a 
public  debt  is  a  good  thing  and  continued  surpluses  are  injurious  to 
a  government?     (Pol.  Als.) 

iv.  In  what  year  were  the  representatives  chosen  who  elected 
Jefferson?  Who  voted  for  Adams?  Look  up  in  Johnston's  American 
Politics  the  composition  of  the  houses  in  session  in  February,  l8oi,and 
February,  1825,  and  compare  each  with  that  of  the  houses  elected  in 
November,  1800,  and  in  November,  1824.  Is  any  principle  of  demo- 
cratic government  violated  ? 


CHAPTER  XIII 

THE  POWERS  OF  CONGRESS 
G«ner£d  References 

Hinsdale,  The  American  Government^  194-235. 

Townsend,  Civil  Government,  157-207. 

Schouler,  Constitutional  Studies,  1 15-147. 

Cooley,  Constitutional  Law,  53-102. 

Burgess,  Political  Science  and  Comparative  Constitutional  Law,  If, 
133-167.     Discusses  general  principles.     Authoritative. 

Meigs,  Evolution  of  the  Constitution,  122-159,  261-272. 

Boutwell,  7/iif  Constitution  at  the  End  of  a  Century.  Summary  of 
some  important  decisions. 

The  Federalist,  Nos.  XXIII-XLIII. 

Story,  Commentaries,  chaps.  XIV-XXXI.  The  most  complete  exposi- 
tion of  the  law  of  the  subject. 


Aim  of  the 
chapter. 


Extent  of 
the  power 
conferred. 

Hinsdale, 
§$  341-347. 

Cooley, 
Const"  I  Law, 
53-63- 


301.  General  Powers.  —  All  the  legislative  power  granted 
in  the  Constitution  to  the  United  States  government  is 
vested  in  Congress.  The  different  classes  of  these  powers 
have  been  mentioned  in  two  places,  but  they  deserve  a  fuller 
treatment.  It  is  the  aim  of  this  chapter  to  discuss  some 
features  of  the  most  important  powers  which  are  not  con- 
sidered at  some  length  under  other  heads,  and  to  note 
some  of  the  means  used  by  Congress  in  performing  its 
constitutional  duties. 

302.  Taxation. — Article  I,  Section  8,  of  the  Constitu- 
tion opens  in  this  way:  "The  Congress  shall  have  power 
to  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States;  but  all  duties,  im- 
posts, and  excises  shall  be  uniform  throughout  the  United 
States,"    As  is  well  known,  the  Confederation  failed  par- 

268 


The  Powers  of  Congress  269 

tially  because  of  lack  of  funds,  its  sources  for  revenue 
being  (i)  requisitions  upon  the  states,  (2)  borrowing 
money,  or  (3)  creation  of  paper  money.  There  was  no 
one  thing  upon  which  the  convention  was  more  unanimous 
than  that  the  central  government  should  have  independent 
power  of  taxation.  The  right  to  levy  "taxes,  duties,  im- 
posts, and  excises"  was  therefore  granted,  subject  to  the 
restrictions  that  all  direct  taxes  should  be  in  proportion  to 
population,  and  that  the  others  should  be  uniform  through- 
out the  country.  But  it  was  thought  best  to  state  the 
objects  to  which  this  revenue  was  to  be  devoted.  Fortu- 
nately, the  term  general  welfare  was  inserted,  which  has 
made  it  possible  for  Congress  to  expend  this  money  for  any 
object  over  which  the  national  government  has  constitu- 
tional control.  The  extent  to  which  these  different  kinds  of 
taxes  have  been  used  is  taken  up  in  the  chapter  on  Taxation. 

303.  Borrowing  Money.  —  The  Constitution  directly  con-  United State» 
fers  the  power  to  borrow  money  on  the  credit  of  the  United  ^"^s- 
States.  This  is  done  in  several  ways.  Usually  the  national  Hinsdale, 
government  issues  bonds,  which  it  sells  upon  the  market  to  "  ^  ~^^  ' 
the  highest  bidders.  The  rate  of  interest  that  is  offered, 
and  the  premium  or  discount  at  which  the  bonds  are  taken, 
depend  upon  the  credit  of  the  government  at  the  time 
rather  than  upon  the  amount  of  the  existing  debt.  During 
all  of  our  wars,  and  occasionally  in  times  of  peace,  the  gov- 
ernment has  found  it  necessary  to  sell  bonds.  The  largest 
amount  ever  issued  at  one  time  was  in  1862,  when  the  par 
value  of  the  bonds  was  1^500,000,000,  although  the  next 
year  Congress  authorized  1^900,000,000;  but  this  second 
law  was  soon  after  altered.  Most  of  the  bonds  of  the  Civil 
War  were  for  six  per  cent,  and  sold  at  or  near  par.  Dur- 
ing the  Spanish-American  War,  when  the  government  offered 
$200,000,000  worth  of  three  per  cent  bonds  for  sale,  more 
than  six  times  as  much  was  subscribed,  most  of  it  at  a  pre- 
mium. In  view  of  these  facts  comment  on  the  improved 
credit  of  the  United  States  is  unnecessary.  At  the  present 
time  the  Secretary  of  the  Treasury  may  sell  three  per  cent 


270 


The  American  Federal  State 


United  States 
notes. 

Boutwell, 
Const,  at  End 
of  Century, 
182-190. 

Power  of 
Congress  in 
regard  to 
money. 


Legislature 
V.  the  execu- 
tive. 

Cf.  Meigs, 
Growth  of 
Const.,  146- 
150. 

Hinsdale, 
§§  400-408. 

Cooley, 
Const  I  Law, 
88-92. 


Advantage 
of  a  small 
army. 


bonds  without  special  action  of  Congress.  This  enables 
him  to  meet  any  special  crisis,  even  if  Congress  is  not  in 
session. 

The  United  States  may  also  borrow  money  by  means  of 
what  is  called  notes.  These  are  issued  either  for  a  short 
time  or  else  for  an  indefinite  period,  and  may  or  may  not 
bear  interest.  In  some  cases,  as  with  the  "greenbacks," 
they  have  been  made  legal  tender  in  the  payment  of  debts. 

The  national  government  has  full  charge  of  all  matters 
relating  to  coins,  coinage,  and  the  prevention  of  counter- 
feiting; and  the  states  are  not  permitted  to  issue  bills  of 
credit  nor  make  anything  but  gold  and  silver  coin  a  tender 
in  payment  of  debts. 

304.  Military  Power :  the  Army.  —  The  constitutional 
history  of  the  English-speaking  race  is,  to  a  large  extent, 
a  record  of  the  struggle  between  the  monarch  and  the  rep- 
resentatives of  the  people  to  see  which  should  have  charge 
of  all  financial  and  military  affairs.  In  this  country  at 
the  present  time  the  executive  has  nothing  to  say  about 
the  purse  except  in  a  negative  way.  But  he  still  retains  the 
monarch's  position  as  military  leader,  though  Congress  has 
a  great  many  checks  upon  him.  It  alone  can  declare  war, 
raise  and  support  an  army,  and  create  a  navy,  and  make 
rules  for  the  regulation  of  the  land  and  naval  forces,  which 
the  President  is  to  execute;  but  even  if  it  wishes,  it  cannot 
vote  money  for  an  army  for  a  longer  time  than  two  years. 
Congress  also  provides  for  organizing  and  calling  forth  the 
militia  "  to  execute  the  laws  of  the  Union,  suppress  insur- 
rections, and  repel  invasions."  The  American  people  have 
always  shown  so  great  a  distrust  of  a  standing  army  that 
Congress  has  never  authorized  a  force  larger  than  was 
necessary  to  keep  the  Indians  in  order.  This  freedom 
from  the  militarism  which  binds  Europe  has  been  of  ines- 
timable advantage,  because  it  has  left  half  a  million  of  our 
ablest-bodied  citizens  at  liberty  to  enter  the  ranks  of  pro- 
ducers instead  of  living  upon  the  income  of  others.  Before 
1898  the  maximum  of  enlisted  men  permitted  by  law  was 


The  Powers  of  Congress 


271 


twenty-five  thousand,  but  present  and  future  conditions  will 
probably  demand  a  much  larger  number. 

305.  The  Militia.  —  A  great  many  believe  that  proper  Rules  for 
preparation  for  possible  wars  can  be  obtained  without  serious  organization 
loss  to  our  industrial  life  through  a  well-trained  militia.  At  service. 
the  present  time,  there  are  only  a  little  over  a  hundred 
thousand  men  enrolled  in  this  branch  of  the  service, 
although  theoretically  the  militia  includes  all  able-bodied 
citizens  between  the  ages  of  eighteen  and  forty-five  who  are 
not  exempt  by  national  or  state  law.  Each  militiaman 
enrolled  for  service  is  pledged  for  three  years,  during 
which  he  receives  arms  and  accoutrements  free.  He  may 
be  called  out  by  the  state  executive  or  by  the  President, 
for  any  time  not  exceeding  nine  months,  to  repel  invasions 
or  put  down  insurrection.  He  is  not  compelled  to  fight 
on  foreign  soil,  but  is  otherwise  under  the  same  regulations 
as  the  regular  soldier  when  called  upon  to  perform  duty  by 
the  national  government. 


militia  and 

foreign 

reserves. 


The  general  rules  for  the  militia  are  passed  by  Congress,  and  pro-  Contrast 
vide  for  the  method  of  organization,  number  of  officers,  method  of  between  our 
election,  and  other  details.  Such  matters  as  are  not  considered  by 
Congress  are  cared  for  by  each  state  as  it  sees  fit.  The  difference 
between  the  national  guard  and  the  Landwehr  or  other  reserves  in 
foreign  countries  should  be  carefully  noted.  Our  militia  is  not  a 
trained  body  in  the  same  sense  as  these  others,  for  it  is  not  composed 
of  members  of  the  standing  army  who  have  given  the  required  num- 
ber of  years  to  their  country,  and  are  kept  organized  so  as  to  be  called 
on  in  case  of  need.  Such  a  force  is  necessarily  more  efficient  than  a 
militia  is  likely  to  become. 


306.  The  Navy. — Most  of  those  who  have  given  the  Value  of  a 
subject  special  study  advocate  a  large  navy  as  the  best  "^^* 
means  of  protecting  ourselves  from  foreign  enemies  in 
time  of  war,  and  as  a  means  of  preventing  war  altogether. 
Since  1883  the  United  States  government  has  done  a  great 
deal  toward  building  up  the  navy,  but  even  yet  we  rank 
(1901)  fourth  among  the  nations  in  the  number  of  formid- 
able vessels.     Need  of  defending  our  new  colonies,  as  well 


272 


The  American  Federal  State 


Different 
means  for 
defence. 

Ayres,  J.  C, 
Forum, 
XXIV 
(1898),  416- 
421. 


Views 

regarding 

the  extent  of 

Congress's 

territorial 

powers. 

Judson, H. 
V.MR'OfR. 
XIX  (1899), 
67-75- 


Partial  self- 
government 
and  prepara- 
tion for 
statehood. 

Hinsdale, 
h\  589-597. 

Cooley, 
Const' I  Law, 
170-172. 


as  our  own  country,  will  probably  induce  Congress  to  vote 
large  sums  for  new  vessels  in  the  near  future,  until  we  are 
able  to  cope  on  equal  terms  with  the  strongest  naval  powers 
in  existence. 

307.  Coast  Defence.  —  Congress  has  made  every  effort  to 
adequately  protect  our  seaports  by  coast  defences  of  different 
kinds.  The  most  important  of  these  are  the  coast-defence 
vessels,  usually  heavy-armored  monitors  or  floating  batteries; 
and  the  land  batteries,  composed  of  large  mortars  and  very 
powerful  guns,  often  mounted  on  disappearing  carriages. 
The  channels  are  well  guarded  by  torpedoes  or  submarine 
mines  controlled  by  electricity  from  the  nearest  fort  or 
battery.  Only  upon  the  Great  Lakes  is  the  defence  quite 
incomplete.  By  treaty  with  Great  Britain  we  have  agreed 
not  to  keep  more  than  one  war  vessel,  and  not  to  fortify 
any  harbors. 

308.  Territorial  Powers.  —  The  national  government  has 
power  to  acquire,  cede,  and  control  territory.  The  Consti- 
tution does  not  directly  delegate  the  first  of  these,  but  no 
right  is  now  more  firmly  established  than  that  of  annex- 
ing territory.  For  this  public  domain  Congress  may  make 
"all  needful  rules  and  regulations."  Over  it  the  power  of 
Congress  is  very  great.  Different  views  regarding  the  ex- 
tent of  that  power  are  held  by  public  men  of  prominence, 
some  believing  that  all  the  limitations  placed  upon  Con- 
gress by  the  Constitution  apply  to  the  territories  as  well  as 
to  the  states,  and  others  that  Congress  has  full  power  over 
the  territories  by  virtue  of  its  sovereignty. 

309.  Principles  of  Territorial  Control.  —  The  develop- 
ment of  national  power  has  gone  hand  in  hand  with  our 
territorial  growth.  Attention  has  already  been  called  to 
the  causes  which  influenced  the  states  that  had  Western  land 
claims  under  the  Confederation  to  yield  control  of  this 
Western  domain  to  the  United  States  in  Congress  assem- 
bled. These  cessions  began  as  early  as  1780,  and  were  not 
completed  till  1802.  In  the  famous  Ordinance  of  1787  for 
the  territory  northwest  of  the  Ohio  River,  Congress  pro- 


The  Powers  of  Congress  273 

ceeded  to  lay  down  two  principles  that  have  been  pretty 
faithfully  adhered  to  in  all  later  acquisitions:  (i)  The 
territory  is  governed  by  Congress,  but  as  the  population 
increases  the  people  are  given  a  larger  share  in  the  gov- 
ernment; (2)  preparation  is  made  for  the  admission  of 
states  as  soon  as  the  population  is  sufficient  and  upon  an 
apparent  equality  with  the  other  states. 

310.  Acquisition   of  Territory. — Since    1787   we   have  Territorial 
rarely  failed  to  embrace  any  opportunity  to  enlarge  our  B''°w*h 
boundaries.     The  first  addition  was  made  in  1803,  and 
consisted  of  nearly  a  million  square  miles  called  Louisiana,    x wL^  ss 
covering  all  of  the  western  Mississippi  basin  and  the  isle  of 
Orleans.     In  18 19  Florida  was  purchased  from  Spain,  and 

we  gained  a  natural  boundary  on  the  southeast.  In  1845 
we  annexed,  by  joint  resolution  of  Congress,  the  inde- 
pendent state  of  Texas,  with  extensive  but  indefinite 
boundaries  on  the  west.  The  next  year  a  treaty  with  Great 
Britain  recognized  our  right  to  the  Oregon  County  west  of 
the  Rockies  and  south  of  the  forty-ninth  parallel.  At  the 
close  of  the  war  with  Mexico  (1848)  a  large  section  of  terri- 
tory south  of  Oregon  and  west  of  Texas  was  annexed,  and 
(i853)'a  disputed  strip  in  what  is  now  the  southern  part  of 
Arizona  was  added,  the  sum  of  $25,000,000  being  given 
Mexico  as  compensation  for  this  immense  region.  In 
1867  Alaska  was  purchased  from  Russia  for  ;$7, 200,000. 
Not  until  1898  were  any  further  changes  made.  In  July 
of  th?t  year  Hawaii  was  annexed  by  joint  resolution,  and 
later,  by  the  treaty  with  Spain,  Porto  Rico  and  other 
islands  were  ceded,  and  the  Philippines  were  transferred 
for  $20,000,000. 

311.  The  Government  of  a  Territory.  — This  domain  has  Organized 
usually  been  divided  into  districts  of  a  convenient  size  andunorgan- 

,,,..„,  .        .  ,  ,      ized  terri- 

called  territories.     These  territories  are  governed  accord-   tories. 
ing  to  the  law  that  may  be  prescribed  by  Congress,  and  are  rf  t  5  » 
of  two  classes,  organized  and  unorganized,  the  former  always 
having  a  large  degree  of  self-government,  the  latter  being 
governed  from  Washington. 

T 


274 


The  American  Federal  State 


Degree  of 
self-govern- 
ment in  the 
organized 
territories. 

Bryce,  389- 
400. 

Cooley, 
Const' I  Law, 
172,  173. 


Degree  of 

national 

control. 


Government 
of  Washing- 
ton, past  and 
present. 

Meriweather, 
C,  in  P.  S.  Q. 
XII  (1897). 
409-419. 

Process  of 
admission. 

Cooley, 
Const' I  Law, 
175-183. 


In  what  we  may  call  the  territorial,  as  distinguished  from 
the  colonial  government,  we  have  a  combination  of  self- 
government  with  control  by  the  United  States.  The  legis- 
lature of  two  houses  is  chosen  by  the  people  for  a  term  of 
two  years,  and  its  sessions  are  biennial.  The  legislature 
has  almost  as  full  power  as  the  legislatures  of  the  states, 
subject  of  course  to  the  negative  of  Congress.  Each  ter- 
ritory chooses  a  delegate,  who  sits  in  the  House  of  Rep- 
resentatives and  may  speak  on  bills  affecting  the  territory, 
though  he  has  no  vote.  The  people  also  elect  all  judges, 
except  the  very  highest,  and  all  local  officials. 

Yet  national  control  is  quite  prominent  even  in  a  "  self- 
governing"  territory.  The  President  appoints,  by  and  with 
the  advice  of  the  Senate,  the  governor,  the  secretary,  the 
three  judges  of  the  highest  court,  the  district  attorney,  and 
the  marshal,  all  of  whom  hold  office  for  four  years.  The 
number  of  members  of  the  legislature  and  the  qualifica- 
tions of  voters  are  determined,  not  by  territorial,  but  by 
congressional  law.  The  governor  has  general  executive 
power,  is  head  of  the  militia,  and  has  power  to  pardon 
offences  against  territorial  law.  He  has,  in  addition,  a 
two-thirds  veto  over  the  legislature.  Congress  may  at  any 
time  change  the  government  of  a  territory,  and  it  at  all 
times  reserves  the  right  to  annul  a  law  of  the  legislature. 

312.  The  District  of  Columbia  is  governed  by  Congress 
as  it  sees  fit.  Until  1870  the  city  of  Washington  was 
allowed  a  regular  municipal  government.  Then  for  some 
years  it  was  governed  more  directly  by  Congress;  but 
since  1878  control  has  been  exercised  through  three  com- 
missioners appointed  by  the  United  States  legislature,  with 
pretty  complete  power  to  appoint,  and  to  make  ordinances. 

313.  Admission  of  New  States.  —  These  territories  may 
be  admitted  to  full  statehood  by  Congress  at  its  discretion. 
It  often  happens  that  the  territory  which  desires  admission 
calls  a  constitutional  convention  so  as  to  adopt  and  ratify 
a  constitution  before  applying.  If  its  request  meets  with 
favor,  it  is  then  admitted  at  once.     More  frequently  Con- 


The  Powers  of  Congress  275 

gress  passes  an  "enabling  act,"  which  designates  the  boun- 
daries of  the  new  states,  names  the  qualifications  of  voters 
who  shall  elect  a  convention  for  the  purpose  of  framing  a 
constitution.  It  may  go  further  and  specify  certain  condi- 
tions that  must  first  be  fulfilled,  such  as  provisions  for  pub- 
lic schools  and  renunciation  of  all  claims  to  public  lands. 
If  the  constitution  accepted  by  the  people  is  satisfactory 
to  Congress,  and  if  that  body  believes  the  conditions  have 
been  met,  the  territory  is  declared  to  be  a  state  of  the 
Union. 

314.  Limitations  on  Admission  of  New  States,  —  In  the  Constitu- 

admission  of  new  states  the  Constitution  prescribes  certain  *'°°*'  P"""' 

visions, 
limits  beyond  which  Congress  shall  not  go.     When  the 

Constitution  was  formed  there  was  very  great  dread  among     *°'^J''  ."'"" 

■'   *  °    mentartes, 

the  states  that  Congress  might  interfere  with  them,  so  the 
express  provision  was  inserted  that "  no  state  shall  be  formed 
or  erected  within  the  jurisdiction  of  any  other  state,  nor 
any  state  be  formed  by  the  junction  of  two  or  more  states, 
or  parts  of  states,  without  the  consent  of  the  legislatures 
of  the  states  concerned  as  well  as  of  the  Congress."  The 
only  time  that  these  clauses  have  been  in  any  way  violated 
was  in  the  admission  of  West  Virginia,  in  1863.  The  state 
of  Virginia  was  in  rebellion,  but  the  western  counties  re- 
mained loyal.  A  new  constitution  was  adopted  ostensibly 
by  the  whole  state,  really  by  this  one  section.  Its  senators 
and  representatives  were  recognized  by  Congress,  and  the 
name  West  Virginia  given  to  the  state.  After  the  war  the 
Virginia  legislature  gave  its  consent  to  the  change. 

315.  Congress  in  the  States.  —  It  has  always  been  the   Conditions 

aim  of  our  federal  system  to  prevent  Congress  from  inter-   f®""  '^/*' 

•'  '^  °  interference. 

fering  in  the  states  except  with  those  matters  under  its 
immediate  charge.     Yet  one  power  given  by  the  Constitu-    consri Law 
tion  has  furnished  the  excuse  for  territorial  control  of  the  202-206. 
states  by  the  national  legislature.     It  is  contained  in  Sec-   Hinsdale, 
tion  4,  Article  IV,   and  reads  as  follows:  "The  United   $$598-603. 
States  shall  guarantee  to  every  state  in  this  Union  a  repub- 
lican form  of  government,  and  shall  protect  each  of  them 


i;^ 


The  AmeHcan  Federal  State 


Use  of  the 
power. 

Johnston,  in 
Lalor,  II, 
543-545- 


Commercial 
powers  in 
the  conven- 
tion. 

Meigs, 
Growth  of 
Const.,  135- 
138. 


against  invasion,  and,  on  application  of  the  legislature  or 
of  the  executive  (when  the  legislature  cannot  be  convened), 
against  domestic  violence." 

It  must  be  perfectly  evident  that  the  Union  cannot  exist 
as  a  Federal  State  if  the  states  differ  greatly  in  their  political 
or  social  institutions,  and,  consequently,  it  was  necessary 
to  give  Congress  power  to  prevent  the  establishment  of 
monarchical  or  other  anti -republican  forms  of  government. 
In  reconstruction  times  this  clause  was  given  as  a  reason 
for  the  constitutional  interference  of  Congress  in  the  South- 
em  states.  It  was  asserted  that  a  republican  form  of  gov- 
ernment did  not  exist,  and  that  Congress  should  care  for 
state  affairs  until  it  was  evident  that  a  republican  form  of 
government  would  be  maintained. 

The  other  clauses  of  this  section  will  be  considered  under 
the  military  power  of  the  executive  (§§  339,  340). 

316.  Commerce  with  Foreign  Nations.  ■ —  The  lack  of 
power  to  regulate  commerce  was  one  of  the  principal  causes 
which  produced  the  federal  union  of  1787.  The  naviga- 
tion laws  made  by  Parliament  had  been  so  odious  that  the 
states  were  careful  not  to  intrust  the  Congress  of  the  Con- 
federation with  the  charge  of  commercial  matters,  except 
so  far  as  they  may  have  been  affected  by  treaties  with  other 
countries.  But  if  the  history  of  the  Confederation  showed 
anything,  it  proved  that  the  states  were  incompetent  to  deal 
with  a  subject  in  which  uniformity  was  so  much  needed. 
There  was,  accordingly,  little  difference  of  opinion  among 
the  members  of  the  convention  as  to  the  need  of  central 
control  of  commerce,  but  there  nevertheless  appeared  con- 
siderable opposition  to  giving  Congress  full  power  over  it. 
An  unsuccessful  attempt  was  made  by  the  anti-commercial 
element  of  the  South  to  require  all  navigation  laws  to  be 
passed  by  a  two-thirds  vote;  but  by  making  concessions  by 
which  the  slave  trade  was  permitted  for  twenty  years,  the 
New  England  states  succeeded  in  removing  the  two-thirds 
clause,  so  that  commercial  laws  were  made  in  the  same  way 
as  all  others.    The  agricultural  sections  of  the  country  were. 


The  Powers  of  Congress  277 

however,  able  to  insert  in  the  Constitution  a  provision  that 
no  duty  should  be  laid  on  goods  exported  from  any  state. 
Duties  on  imports  were  permitted  as  well  as  other  com- 
mercial regulations  by  treaty  or  by  law;  but  all  duties  were 
to  be  "uniform  throughout  the  United  States,"  and  "no 
preference  shall  be  given  by  any  regulation  of  commerce  or 
revenue  to  the  ports  of  one  state  over  those  of  another." 

317.  Means  of  promoting  Foreign  Commerce.  —  All  mod-  Through 
em  nations  have  taken  pains,  directly  or  indirectly,  to  pro-  co'"™e''c>ai 
mote  the  commercial  interests  of  their  citizens.    Almost  all 

seek  to  protect  industry  within  their  borders  by  protective  American 
tariffs;  and  they  are  in  the  habit  of  bidding  for  the  favor  Diplomacy, 
of  other  nations,  by  modifying  these  tariffs,  if  a  similar  421-424- 
reduction  can  be  obtained  from  the  country  with  whom  they 
are  dealing.    This  general  principle  is  called  "  reciprocity, " 
and  has  been  used  by  our  department  of  State  under  laws 
of  Congress.     Another  method  somewhat  similar  is  to  in- 
crease trade  by  treaty  through  what  are  known  as  the  "  most- 
favored  nation  "  clauses.     That  is,  if  we  make  a  commer- 
cial treaty  with  Italy,  in  which  both  parties  agree  that  the 
other  shall  have  all  the  advantages  of    the  most-favored 
nation,  then  any  special  privilege  Italy  may  later  extend  to 
a  third  country  will,  by  virtue  of  the  treaty,  be  granted  to  us. 

Still  another  way  of  fostering  foreign  commerce  or  in-   Subsidies, 
creasing  our  carrying  trade  is  by  the  granting  of  bounties  Hadiey,  A. 
or  subsidies  to  persons  who  build  and  equip  American  T.,  in  Laior, 
vessels.     Foreign  States  have  used  this  artificial  means  to 
foster  their  merchant  marine,  with  greater  or  less  success; 
but  until  recently  the  navigation  laws  of  the  United  States 
have  left  our  marine  to  look  after  itself.     This  it  did  with 
the  greatest  success  until  alter  1850,  at  which  date  we  were 
second  only  to  Great  Britain  in  carrying  trade;  but  since 
then,  for  many  reasons,  we  have  been  unable  to  compete  on 
equal  terms  with  foreign  vessels,  till  scarcely  ten  per  cent 
of  our  foreign  commerce  is  carried  in  American  bottoms. 

318.  Interstate    Commerce. — Commerce    between    the   Power  of 
states  is  necessarily  a  subject  for  which  the  states  cannot  Congress. 


278 


The  American  Federal  State 


Cooley, 
Const' I  Law, 
65.  67-77. 

Story,  Com- 
mentaries, 
§J  1066-1075. 

Boutwell, 
Const,  at  End 
of  Century, 
190-304. 

Aid  given  by 
the  govern- 
ment. 

Johnston,  in 
Lalor,  II, 
568-573- 


Historical. 

Hotchkiss, 
W.  H.,  in 

A^.  A.  R.,  167 
(1898),  580- 
591- 


Law  of  1898. 

Dunscomb, 
S.  W.,  Jr.,  in 
P.  S.  Q. 
XIII  (1898), 
606-613. 


properly  legislate.  During  most  of  our  history  the  action 
of  Congress  has  been  largely  negative,  confined  to  keeping 
the  states  from  interfering  with  the  navigation  and  control 
of  rivers  that  flow  through  more  than  one  state  or  between 
states.  With  the  increase  of  railway  traffic,  congressional 
law  became  inevitable,  and  led  to  the  creation  of  the  Inter- 
state Commerce  Commission,  and  to  the  anti-trust  legis- 
lation already  mentioned  (§  218)  and  to  be  discussed  later 
(§613,618). 

The  development  of  inland,  as  well  as  foreign  commerce, 
has  been  assisted  by  the  appropriations  made  by  Congress 
for  the  improvement  of  rivers  and  harbors.  An  immense 
amount  of  work  has  been  done  in  widening  and  deepening 
channels,  in  building  breakwaters,  in  erecting  lighthouses, 
and  in  other  ways.  The  magnitude  of  these  improvements 
may  be  indicated  by  the  statement  that  a  single  appropria- 
tion bill,  that  of  1897,  authorized  contracts  for  the  improve- 
ment of  rivers  and  harbors  aggregating  over  ^60,000,000. 

319.  Bankruptcy  Laws. — Even  in  1787  the  leaders  of 
political  thought  realized  that  bankruptcy  laws  should  not 
be  subject  to  the  differences  and  uncertainties  of  state  law, 
but  should  be  the  same  in  New  Hampshire  as  they  were 
in  Georgia.  In  point  of  fact,  Congress  has  acted  tardily 
and  hesitatingly  on  this  important  subject,  and  the  states 
have  passed  many  laws  for  insolvents  which  the  national 
courts  have  recognized  as  constitutional  during  the  times 
Congress  has  done  nothing,  which  cover  the  great  part  of 
the  last  century.  In  1800  a  law  was  passed  which  was  in 
force  three  years.  In  1841  another  bankruptcy  law  lasted 
an  even  shorter  time.  1867  saw  the  third  attempt,  but  this 
law  was  repealed  in  1878.  Finally,  in  1898,  the  present 
law  was  passed.  A  distinction  is  made  between  the  volun- 
tary and  involuntary  bankrupt;  the  former  being  given  the 
opportunity  to  pay  off  his  debts  with  what  assets  he  pos- 
sesses, while  the  creditors  of  the  latter  are  guaranteed  pro- 
tection against  fraud  and,  consequently,  against  unnecessary 
loss. 


The  Powers  of  Congress 


279 


320.  Coins.  —  In  order  that  the  business  of  a  country 
may  not  be  unnecessarily  embarrassed,  the  central  govern- 
ment must  be  given  power  to  make  uniform  laws  regarding 
the  standards  of  value  and  measurement.  The  Constitu- 
tion gives  Congress  the  right  to  determine  what  metals  shall 
be  used  for  coins,  which  one  or  ones  shall  be  the  standard, 
what  amount  of  each  metal  is  to  be  used  in  the  different 
pieces  of  money,  and  what  value  foreign  coins  shall  legally 
have  when  used  in  the  United  States.  The  Congress  of 
the  Confederation  adopted  the  decimal  system,  suggested 
by  Morris  and  simplified  by  Jefferson.  This  convenient 
scheme  has  been  continued  and  is  still  in  use;  although 
until  1900  we  had,  theoretically,  two  standards,  gold  and 
silver,  whereas  now  we  have  but  one,  gold.  The  states  are 
forbidden  to  coin  money  or  to  issue  paper  money,  but  they 
may  create  banks,  which  have  the  right  to  issue  bank  notes 
—  which  are  never  legal  tender.  At  the  present  time  a  tax 
of  ten  per  cent  by  Congress  upon  such  state  bank  notes 
is  of  course  prohibitory.  Congress  has  also  full  power  to 
punish  counterfeiters  of  national  currency,  so  as  to  protect 
the  individual  in  the  use  of  coin  of  the  realm. 

321.  Weights  and  Measures. — The  English  system  of 
weights  and  measures  was  in  universal  use  and  was, 
naturally,  the  one  selected  by  Congress.  Several  attempts 
have  been  made  to  have  the  metric  system  adopted;  but 
although  Congress  has  declared  the  use  of  the  metric  stand- 
ards to  be  legal,  they  have  not  been  widely  accepted  by 
the  business  people  of  the  country. 

322.  Naturalization. — We  have  already  considered  the 
process  of  naturalization  (§  252),  and  can  readily  appreciate 
that  to  leave  such  a  subject  to  the  separate  states  would  be 
the  height  of  folly.  Even  when  the  great  majority  of  the 
population  believed  there  was  no  United  States  citizenship, 
very  few  desired  to  deprive  Congress  of  the  power  to  regu- 
late this  subject.  The  laws  passed  have  not  been  very  dif- 
ferent from  the  one  in  operation  now.  Except  from  1790 
to  1795,  when  the  period  of  residence  required  was  two 


National 

power 

and  state 

limitations 

regarding 

coinage. 

Hinsdale, 

hh  357-367. 
388-390. 


The  English 
system  used. 

Hinsdale, 
H87. 


History  of 
naturaliza- 
tion laws. 


28o 


The  American  Federal  State 


Individual 
and  collec- 
tive natural- 
ization. 


Punishment 
of  each. 

Hinsdale, 
kh  559-568. 

Burgess,  Pol, 
Science,  II, 
147-150. 


Hinsdale, 
hh  391-398. 


years,  and  from  1798  to  1802,  when  it  was  increased  to 
fourteen  years,  the  time  has  always  been  five  years.  The 
most  ambitious  attempt  to  keep  foreigners  from  citizenship 
was  that  of  the  "  Know-nothing  "  party  during  the  fifties,  a 
very  great  extension  of  time  being  favored. 

Naturalization  has  been  accomplished  in  one  of  two 
ways:  individually,  where  a  single  person  makes  out  his 
papers  as  described;  and  collectively,  where  by  law  or 
treaty  a  number  of  aliens  are  declared  to  be  citizens,  as  in 
the  treaty  by  which  Louisiana  was  purchased,  the  treaty 
of  Queretaro  (1848),  or  the  fourteenth  amendment.  At 
present  the  laws  restrict  individual  naturalization  to  persons 
of  the  white  or  black  race. 

323.  Treason  and  Piracy.  —  The  most  important  crimes 
that  come  under  the  control  of  the  United  States  govern- 
ment relate  to  piracy  and  treason.  It  is  left  for  Congress  to 
decide  what  constitutes  the  former,  but  the  latter  is  defined 
in  the  Constitution.  Yet  Congress  may  regulate  the  punish- 
ment of  treason  as  well  as  of  piracy.  In  reality  the  laws 
relating  to  treason  have  been  marked  by  leniency.  If  we  are 
in  any  doubt  concerning  this,  we  have  only  to  compare  the 
wholesale  confiscation  acts  passed  by  the  state  legislatures 
for  the  Tories  at  the  close  of  the  Revolutionary  War  with 
the  treatment  of  the  Southerners  after  the  War  of  Secession. 

324.  Other  Powers.  —  Among  the  other  powers  expressly 
conferred  upon  Congress  are  the  right  to  create  post-offices 
and  post  roads  (§  358);  to  vest  the  appointment  of  officials 
in  the  higher  executive  officers;  to  make  uniform  laws  on 
patents  and  copyrights  for  the  encouragement  of  inventive 
and  literary  ability  (§364);  to  create  national  tribunals 
inferior  to  the  Supreme  Court  (§§  385-388) ;  to  make  laws 
regulating  the  election  of  senators,  representatives,  and 
presidential  electors;  to  determine  the  compensation  of 
all  national  officials;  and  to  provide  for  amendments  to  the 
Constitution  by  a  two-thirds  vote  of  both  Houses. 

325.  The  Elastic  Clause.  —  As  I  have  already  stated  in 
other  connections,  the  power  that  has  infused  life  into 


The  Powers  of  Congress 


281 


these  powers  of  Congress  is  contained  in  what  is  known  as 
the  "elastic  clause,"  that  "Congress  shall  have  power  to 
make  all  laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of 
the  United  States  or  in  any  department  or  officer  thereof." 
It  is  probable  that  the  different  departments  of  the  central 
government  would  have  sooner  or  later  accepted  the  doc- 
trine of  implied  powers  without  this  clause,  but  the  con- 
stitutional difficulties  would  have  been  very  much  greater 
without  it.  Of  late  years  there  has  been  a  tendency  to  go 
further  than  even  implied  powers  would  naturally  permit,  by 
claiming  that  powers  can  be  exercised  by  the  United  States 
government  because  of  its  inherent  sovereignty,  without 
regard  to  the  powers  delegated  either  express  or  implied. 
Even  supreme  court  justices,  considered  the  most  conserva- 
tive of  our  officials,  have  indirectly  given  an  indorsement 
of  this  view  in  the  Legal  Tender  Cases  and  in  later  deci- 
sions. Such  a  method  of  interpreting  the  powers  of  Con- 
gress will  of  course  insure  its  ability  to  legislate  for  all 
subjects  that  may  come  up,  and  which  even  we  at  this  time 
cannot  foresee;  but  it  must  have  a  very  great  influence  on 
the  character  of  our  federal  system  in  the  future. 


Influence  of 
"  implied 
powers  "  on 
position  of 
Congress. 

Boutwell, 
Const,  at  End 
of  Century, 
231-233. 


QUESTIONS  AND  REFERENCES 
Financial  Powers  (§§  301-303) 

1.  Was  too  much  power  of  taxation  given  to  Congress  by  the  Con- 
stitution? Would  it  have  been  beneficial  to  the  country  at  large  to 
have  part  of  the  revenue  from  imports  distributed  among  the  states? 

2.  What  objections  are  there  to  having  direct  taxes  levied  by  the 
central  government?  Is  the  rule  that  all  direct  taxes  must  be  levied  in 
proportion  to  population  a  wise  one  at  present?  Explain  your  answer 
fully. 

Military  Powers  (§§  304-307) 

1.  Are  the  dangers  that  come  from  lack  of  military  and  naval  prepa- 
ration greater  or  less  than  those  which  may  result  from  having  a  strong 
army  and  navy,  and  what  are  they  in  each  case? 


282  The  American  Federal  State 

2.  Assuming  thorough  and  careful  preparation  for  war  as  a  neces- 
sity, would  it  be  best  to  devote  most  attention  to  the  army,  the  militia, 
the  navy,  or  coast  defence,  and  why? 

3.  Have  any  changes  of  military  policy  been  caused  by  the 
new  international  relations  of  the  United  States?  by  the  acquisi- 
tion of  distant  colonies?  by  the  construction  of  the  Nicaragua 
Canal? 

i.  How  large  is  our  army?  Are  there  any  volunteers?  Who  is  the 
commanding  general  ?  What  departments  are  there  ?  How  are  the 
forces  organized? 

ii.  Look  up  the  number  of  each  class  of  vessels  in  our  navy.  How 
does  it  compare  with  the  number  in  1890?  With  those  of  the  same 
classes  of  Great  Britain?  France?  Germany?  (Pol.  Als.)  What  is  the 
difference  between  a  battleship  and  a  cruiser?  between  an  armored  and 
protected  and  an  ordinary  cruiser  ? 


Territorial  Powers  (§§  308-315) 

a.  "Territorial  Growth  of  the  United  States,"  Hinsdale,  How  to 
Study  History,  253-276;  Johnston,  in  Lalor,  I,  93-99  ;  Donaldson, 
Public  Domain,  89-145  ;  Bicknell,  Territorial  Acquisitions  of  the 
United  States. 

1.  At  the  time,  what  has  been  the  feeling  in  regard  to  the  annexa- 
tion of  the  territories  mentioned  in  §  310?  Has  the  nation  been  unani- 
mous about  any  one  ?  In  what  instances  was  there  decided  protest 
from  particular  sections,  and  from  which  ones?  Is  there  general  regret 
over  any  annexation  we  have  made? 

2.  What  constitutional  right  have  the  territories  to  self-government? 
How  are  the  territorial  "  constitutions  "  framed  ?  how  amended  ?  Is 
there  government  with  the  consent  of  the  governed  ? 

i.  What  territories  are  organized  at  the  present  time  ?  What  differ- 
ence is  there  between  the  government  of  Arizona  and  that  of  Hawaii  ? 
What  territories  are  still  "  unorganized  "  ?  How  is  each  governed  ? 
(Revised  Statutes  and  Statutes  at  Large.) 

ii.  Make  a  careful  study  and  a  comparison  of  the  governments  of 
Porto  Rico  and  Hawaii.  What  differences,  if  any,  do  you  notice  in  the 
executive,  legislative,  and  judicial  departments  in  suffrage,  in  represen- 
tation in  Congress,  etc.?     (Current  History,  1900.) 

iii.  What  was  the  last  state  admitted,  and  when?  Were  any  special 
restrictions  placed  upon  it  or  upon  those  which  came  in  just  before  it  r 
Can  these  restrictions  be  altered  by  state  law? 


The  Powers  of  Congress  283 

Commercial  and  Other  Powers  (§§  316-325) 

1.  Is  modern  government  more  or  less  "paternal "in  its  treatment 
of  industry  and  commerce  than  of  other  subjects  ?  Make  a  list  of  all 
the  things  done  by  the  United  States  government  to  promote  its  com- 
mercial interests.     Are  any  of  them  in  your  opinion  unwise  ? 

2.  What  constitutional  rights  has  the  United  States  to  fix  rates  for 
interstate  commerce?  to  improve  New  York  harbor?  to  build  the  Nica- 
ragua Canal?  to  give  Frenchmen  lower  rates  on  imported  goods  than 
Brazilians  ? 

3.  Are  there  any  other  powers  besides  those  exercised  by  Congress 
that  could  with  advantage  to  the  United  States  be  given  that  body? 
If  so,  what  are  they,  and  why  should  they  be  used  by  the  central 
government  ? 

i.  Which  of  our  tariffs  have  been  most  distinctively  protective,  and 
in  what  particulars?  With  what  nations  have  we  commercial  treaties? 
Which  ones  of  these  permit  reciprocity? 

ii.  How  many  aliens  came  to  this  country  last  year?  Of  these,  how 
many  cannot  be  naturalized  under  the  present  laws?  How  many  were 
there  from  England  ?  Canada  ?  Germany  ?  Italy  ?  Hungary  ?  What 
nations  have  sent  the  largest  number  of  persons  since  1820  ?  (Pol. 
Als.) 


CHAPTER   XIV 

THE  PRESIDENT 
General  References 

Hinsdale,  The  American  Government,  248-283. 

Bryce,  The  American  Commonwealth  (abd.  ed.),  22-63. 

Harrison,  This  Country  0/ Ours,  68-lSo. 

Burgess,  Political  Science  and  Comparative  Constitutional  Law,  \\, 
216-263. 

Wilson,  Congressional  Government,  242-273, 

The  Federalist,  Nos.  LXVU-LXXYH. 

Meigs,  Growth  of  the  Constitution,  192-234. 

Stanwood,  History  of  the  Presidency.  Candidates,  issues,  platforms, 
and  political  conditions  of  each  campaign. 

Mason,  The  Veto  Power. 

Baldwin,  Modern  Political  Institutions,  80-116.  Discusses  the  abso- 
lutism of  the  presidency. 

Lalor's  Cyclopedia. 


Head  of  the 

executive 

hierarchy. 

Goodnow, 
Comp. 

Admin.  Law, 
I,  62-70. 


326.  The  President's  Position.  —  The  most  conspicuous 
personage  connected  with  our  system  of  governments  is  the 
President  of  the  United  States.  This  is  due  not  only  to 
the  method  of  election,  which  serves  to  centre  popular 
interest  in  the  presidency  once  in  four  years,  but  to  the 
prominence  of  the  duties  assigned  our  executive  and  the 
centralization  of  executive  power  in  his  hands.  He  repre- 
sents most  nearly  the  sovereignty  and  dignity  of  the  nation 
in  all  international  relations,  in  the  control  of  military 
matters,  and  in  affairs  of  peace.  He  controls  absolutely 
the  executive  department,  not  so  much  because  the  Consti- 
tution vests  him  with  executive  powers,  as  for  the  reason 
that  all  executive  officials  are  directly  or  indirectly  ap- 
pointed by  him,  can  be  removed  at  any  time,   and  are 

284 


The  President  285 

responsible  to  him  in  the  performance  of  their  duties. 
That  is,  the  executive  department  is  the  most  completely 
organized  part  of  the  United  States  government,  every 
inferior  civil  officer  being  directly  subordinate  to  the  Presi- 
dent, in  whom  is  centred  all  power.  In  this  respect  he 
presents  great  contrast  to  the  English  King,  whose  func- 
tions are  exercised  by  a  body  no  longer  responsible  to  him, 
and  to  the  state  governor,  who  has  no  control  whatever 
over  the  majority  of  the  executive  officials  in  his  state. 

327.  Qualifications.  —  In  the  election  at  the  present  time,    Constitu- 

the  constitutional  qualifications  are  the  same  as  those  ex-  *'°"^!  ^"^ 
•     •  I        J      1  II  •  ,  practical  re- 

isting  one  hundred  years  ago;  but  there  are  certain  other  quirements. 

requirements  that  usually  have  to  be  met.     The  Constitu-  ^^  Meigs 

tion  prescribes  that  the  President  must  be  at  least  thirty-    Growth  of 

five  years  of  age,  a  native-born  citizen,  and  a  resident  of    ^'^''^'-  '^°9- 

211,312-314. 
the  United  States  for  fourteen  years.    It  is  hardly  necessary 

to  add  that  at  the  present  time  he  must  be  identified  with 

one  of  the  political  parties,  and  run  as  the  candidate  of 

that  party. 

328.  Term  and  Compensation.  —  It  was  only  after  a  great  The  third 
deal  of  discussion  and  many  changes  that  the  convention  **;''!"  *''*" 
of  1787  finally  selected  four  years  as  the  term  of  office. 

As  nothing  was  said  about  reeligibility,  it  remained    for  T)„    "J^^"' 
custom  to  place  a  fixed  limit  upon  the  term  possible  for    Cbwj/.,  51-53. 
any  one  man.     It  would  have  been  easy  for  either  Wash-   McMaster, 
ington  or  Jefferson  to  have  been  chosen  a  third  time,  but    w  «/-*  the 
each  preferred  the  seclusion  of  private  life.     Later  Presi-  ,^.70"' 
dents  did  not  wish  to  alter  the  rule;  and  since  the  futile 
attempt  made  by  Grant's  adherents  to  nominate  him  a  third 
time  (1880),  it  has  become  a  practical  impossibility  for 
any  one  to  break  the  "third  term  tradition." 

There  has  recently  been  quite  a  little  discussion  about  Agitation  for 
altering  the  term  of  office,  going  back  to  the  six  or  seven   *  six-year 
years  preferred  by  the  convention  at  first,  and  not  allowing 
the  President  to  be  reelected.     The  reasons  for  this  sug-     '^"'  ^*"^  ' 
gestion  are  found  in  the  objections  to  the  exciting  cam- 
paign every  four  years,  and  to  the  bad  effect  which  a  desire 


286 


The  American  Federal  State 


Salary. 


to  remain  in  office  has  upon  a  President's  policy  during 
the  last  two  years  of  the  first  term.  There  can  be  no  doubt 
that  these  objections  are  well  grounded.  Yet  there  is  much 
to  be  said  on  the  other  side.  Four  years  have  been  all  too 
long  for  some  of  the  Presidents  we  have  had.  Six  years 
would  mean  no  reeligibility,  so  that  a  satisfactory  Presi- 
dent could  not  be  retained.  Or  if  he  might  be  elected 
again,  he  would  have  a  stronger  hold  upon  the  patronage, 
which  always  plays  a  part  in  elections,  and  would  pander 
still  more  to  popular  prejudice,  as  reelection  would  be 
more  difficult  if  the  term  were  six  years. 

The  salary  of  the  President  was  at  first  1^25,000  a  year. 
In  1873  it  was  raised  to  $50,000.  In  addition,  the  execu- 
tive mansion  is  placed  at  the  disposal  of  the  President,  and 
the  government  pays  most  of  the  expenses  incurred  in  the 
performance  of  diplomatic  and  social  duties,  aggregating 
about  $200,000  a  year. 


Method  from 
1788  to  1804. 

Johnston,  in 
Lalor,  II, 
60-69. 

Hinsdale, 
h\  451-460. 

Harrison, 
This  Country 
of  Ours, 
73-84. 


329.  First  Method  of  Election.  —  As  we  have  already  seen,  the 
constitutional  convention,  after  considering  many  ways  of  choosing  the 
President,  finally  decided  to  leave  the  choice  with  electors  chosen  by 
the  states  in  the  way  prescribed  by  each.  These  electors  were  equal  in 
number  to  the  representatives  and  senators  from  that  state,  and  were, 
at  the  first,  usually  themselves  elected  by  the  state  legislatures.  It  was 
the  intention  to  name  the  best  men  possible,  and  permit  them  to  use 
their  own  judgment  in  the  selection  of  the  executive,  the  only  limita- 
tions upon  the  freedom  of  choice  aside  from  the  qualifications  named 
above  being  that  the  candidates  for  President  and  Vice-president  should 
not  both  be  from  the  same  state.  At  the  first  elections  the  electors  did 
not  vote  for  separate  candidates  for  the  two  offices  of  President  and 
Vice-president,  but  cast  two  ballots  (Constitution,  II,  §  i,  cl.  2)  for  Presi- 
dent. The  person  receiving  the  highest  number  was  then  declared 
President,  and  the  second  on  the  list  was  declared  Vice-president. 
Owing  to  the  difficulty  that  arose  from  the  Jefferson-Burr  contest  of 
1801,  this  method  was  superseded  in  the  twelfth  amendment  by  that 
in  use  at  the  present.  Even  before  that  time  the  electors  had  become 
a  mere  cog  in  the  machine,  registering  the  popular  will. 


The  nomi- 
nating con- 
vention, ing  a  President  now  in  use  involves  the  nomination,  the 


330.  Nomination  of  a  President.  —  The  method  of  choos- 


The  President 


287 


choosing  of  electors,  and  the  meeting  of  the  electoral  col- 
lege. The  nomination  at  the  beginning  was  by  general 
consent,  later  through  congressional  caucuses,  and  since 
1832  by  national  party  conventions.  The  convention  ordi- 
narily consists  of  twice  as  many  delegates  as  there  are 
members  of  Congress,  and  is  held  in  May,  June,  or  July  of 
the  presidential  year.  Candidates  have  been  suggested  in 
different  parts  of  the  Union,  and  each  has  had  his  agents 
busy  for  the  purpose  of  securing  delegates  favorable  to 
himself.  It  may  sometimes  be  known  before  the  conven- 
tion meets  who  will  be  nominated,  but  such  cases  are  not 
common.  It  usually  requires  quite  a  number  of  ballots  to 
decide  what  person  shall  be  the  nominee.  He  is  soon  after 
informed  of  his  nomination,  and  sends  in  his  letter  of 
acceptance,   which   may   amount   to    a   second  platform. 

(Cf.  §§  546, 547.) 

In  the  selection  of  candidates  it  often  happens  that  the 
ablest  leaders  of  the  party  are  set  aside  for  a  comparatively 
unknown  man.  This  is  especially  apt  to  be  the  case  where 
several  ballots  have  been  taken  without  result,  so  choice 
falls  upon  a  "dark  horse."  But  it  is  due  still  more  to  the 
lack  of  availability  often  found  in  a  man  of  parts.  During 
his  long  public  career  he  has  probably  made  many  enemies, 
and  excellent  though  his  record  may  be,  he  will  poll  fewer 
votes  than  a  new  man.  He  may  not  be  from  one  of  the 
large  states,  or  one  of  the  close  states,  which  the  party 
feels  must  be  carried. 

331.  The  Campaign.  — The  campaign  begins  early  in  the 
autumn,  or  it  may  date  even  from  the  latest  convention. 
Each  party  seeks  to  perfect  its  organization,  to  collect  large 
campaign  funds  from  prominent  members,  and  persons 
especially  benefited  by  the  policy  of  the  party,  and  to 
whip  into  line  the  malcontents  who  may  be  dissatisfied  with 
the  candidate  or  the  platform.  Less  attention  is  now  paid 
to  those  features  which  attract  and  excite,  and  the  cam- 
paigns are  more  likely  to  be  "educational."  Through  the 
platform  and  the  press,  party  orators  and  writers  aim  to 


Bryce,  Amer. 
Common- 
wealth (3d 
reg.  ed.),  II, 
185-202. 


Conditions 

affecting 

nomination. 

Biyce,  58-63. 

Cf.  Wilson, 
Ci'ttg.  Gov't, 
246-254. 


Methods 
used. 

Bryce,  Amer. 
Common- 
wealth (3d 
reg.  ed.),  II, 
203-212. 


288 


The  American  Federal  State 


Objections 
to  the  cam- 
paign. 

Bryce,  214, 


Organization 
and  election. 

Burgess,  Pol. 
Science,  II, 
216-221. 


explain  the  principles  they  indorse,  and  by  argument  and 
illustration  to  convince  those  who  come  within  the  sphere 
of  their  influence.  This  difference  in  method  is  accom- 
panied by  a  less  blind  adherence  to  parties  for  their  own 
sake  than  was  common  fifty  or  even  twenty  years  ago,  though 
we  cannot  yet  boast  that  the  educational  standard  of  the 
campaigns  is  high. 

It  can  readily  be  appreciated  that  the  business  of  the 
country  is  greatly  disturbed  by  this  excitement  and  the 
uncertainty  of  the  policy  to  be  pursued  by  the  new  gov- 
ernment. The  campaign  really  lasts  for  six  months,  and 
during  this  time  there  is  a  marked  business  depression,  as 
no  one  is  willing  to  buy  or  sell  more  than  is  necessary  until 
he  knows  what  is  going  to  be  done.  Another  objection  to 
this  quadrennial  upheaval  is  the  danger  that  arises  from 
disputed  elections.  The  excitement  in  1801  and  1877  was 
so  intense  that  nothing  but  the  good  sense  of  the  persons 
most  interested,  and  the  self-control  of  the  people  prevented 
disorder.  In  a  South  American  State  nothing  could  have 
averted  a  revolution.  There  is  danger,  also,  that  if  the 
issues  are  at  all  sectional,  the  people  will  become  more 
conscious  of  their  antagonism  to  each  other,  and  that,  con- 
sequently, sectionalism  will  be  increased.  Yet  with  all  its 
disadvantages  there  is  no  one  thing  that  has  brought  the 
people  so  close  to  the  national  government,  or  has  made 
them  so  familiar  with  its  plans  and  needs,  as  the  presiden- 
tial campaign.  With  our  democratic  institutions  it  seems 
worth  all  it  costs. 

332.  The  Electoral  College.  —  The  vote  is  polled  the 
Tuesday  after  the  first  Monday  of  November  in  leap  years 
and  1900.  Two  things  should  be  noticed:  first,  the  can- 
didates for  President  and  Vice-president  are  not  the  ones 
voted  for,  though  their  names  may  appear  upon  the  ballot; 
but  in  place  of  them  are  the  party  electors,  equal  in  number 
to  the  representatives  and  senators  in  that  state.  If  the 
vote  of  the  state  is  close,  it  may  be  found  that  some  of  the 
electors  of  one  party  have  been  chosen  while  the  rest  are 


The  President 


289 


Selection  of 
President. 


from  another  party.  Second,  the  suffrage  depends  upon 
state  law,  with  certain  limitations  (United  States  Constitu- 
tion, Amendments  XIV,  XV).  For  this  reason  we  find 
women  voting  in  Wyoming,  while  in  Louisiana  many  of 
the  adult  males  are  shut  out  by  the  alternative  educational 
or  property  qualification. 

As  soon  as  it  is  known  how  the  vote  of  the  state  stands, 
there  is  no  longer  any  doubt  about  who  will  be  next  Presi- 
dent. To  be  sure,  the  obligation  on  the  part  of  an  elector  Burgess,  11, 
to  vote  for  his  candidate  is  a  purely  moral  one,  but  is  not  ^^^~^^S- 
likely  ever  to  be  broken.  The  actual  election  of  the  Presi- 
dent occurs  on  the  second  Monday  of  January,  when  the 
electors  meet  at  their  state  capitals  and  cast  their  ballots. 
These  are  forwarded  by  mail  and  by  messenger  to  the  presi- 
dent of  the  Senate,  who  opens  and  counts  them  in  the 
presence  of  both  houses  of  Congress  on  the  second 
Wednesday  of  February. 


333.   Counting  the  Electoral  Votes. —A  good  deal  of  difficulty 

has  been  caused  by  contests  over  what  electors  should  be  recognized 
In  case  of  dispute.  The  election  of  1876  is  the  one  whose  result  turned 
upon  the  decision  of  this  question.  Two  lists  of  electors  were  sent  in 
from  Louisiana  and  other  states.  In  the  House  the  Democrats  had 
a  majority,  and  in  the  Senate  the  Republicans,  so  that  no  settlement 
could  be  made  by  regular  vote.  It  was  finally  decided  to  have  a  com- 
mission of  fifteen  members,  five  from  each  house  and  five  from  the 
Supreme  Court,  who  should  have  power  to  count  the  votes.  This 
was  done,  and  a  decision  rendered  two  days  before  the  date  set  for 
inauguration.  In  1887  Congress  passed  the  Electoral  Count  Bill,  ac- 
cording to  which  all  future  difficulties  are  to  be  solved.  The  states 
have  full  charge  of  elections,  and  decide  what  electors  have  been 
chosen.  If  only  one  set  of  electors  is  returned  by  a  state,  they  are 
accepted  without  question.  If  there  are  two  sets,  but  one  has  been 
declared  legal  by  a  court,  or  one  has  the  state  executive  signature 
while  the  other  has  not,  that  one  shall  be  received. 

The  method  of  choosing  the  electors  is  now  uniform  throughout  the 
country,  but  has  varied  greatly  in  times  past.  At  first  the  system  of 
election  by  legislature  was  quite  common,  and  was  in  use  in  South 
Carolina  until  i860.  Rhode  Island  was  the  first  state  to  regularly 
adopt  the  election  by  general  ticket  in  iSoo.  The  district  system 
U 


The  electoral 
count  bill. 

Burgess,  II, 
224-238. 


Historical 
methods  of 
selecting 
electors. 


290 


The  American  Federal  State 


Proposed 

election  by 
popular  vote. 

Carlisle,}. 
G.  Forum, 
XXIV 
(1898),  651- 
6S9. 


The  Vice- 
president. 

Burgess,  Pol. 

Science, 

238-240. 

Johnston,  in 
Lalor,  III. 
134.  135- 


The  Cabinet. 


was  extensively  used  from  1792  to  1832,  bat  since  that  date  Michigan 
has  been  the  only  state  that  has  tried  it.  (For  details  the  student  is 
referred  to  Hinsdale's  American  Government,  p.  259.) 

334.  Other  Plans  of  choosing  the  President.  —  During  the 
last  few  years  there  has  been  a  strong  movement  to  change 
the  Constitution  so  as  to  have  the  President  chosen  by 
popular  vote  of  the  whole  country.  This  would  do  away 
with  the  possibility  of  electing  as  President  the  candidate 
who  polled  fewer  votes  than  his  opponent.  It  would  make 
it  unnecessary  to  select  men  just  because  they  could  carry 
close  states,  it  would  reduce  the  chances  of  electing  a  can- 
didate by  bribery  in  a  close  state,  and  it  would  seem  to  be 
more  in  accordance  with  present-day  methods.  On  the 
other  hand,  it  would  require  a  constitutional  amendment 
which  would  be  difificult  to  get.  Uniform  suffrage  laws 
would  be  a  practical  necessity;  and,  in  view  of  the  close- 
ness of  the  popular  vote  in  recent  elections,  election  by 
fraud  would  be  even  more  dangerous  than  under  the  present 
system.  It  is  possible  that  some  plan  of  minority  repre- 
sentation may  be  devised  that  will  permit  us  to  choose  our 
electors  as  at  present,  and  yet  gain  all  of  the  advantages  of 
election  by  popular  vote. 

335.  Presidential  Succession.  —  In  case  of  death  or  resig- 
nation of  the  President  he  is  succeeded  by  the  Vice-presi- 
dent. This  official  must  have  the  same  qualifications,  and 
is  chosen  in  the  same  way  as  the  President.  It  has  been 
the  custom  to  give  the  second  place  on  the  ticket  to  a  sec- 
ond-rate man,  who  will  be  likely  to  bring  the  party  votes 
at  the  November  election.  The  danger  of  selecting  a  fac- 
tional leader  not  in  harmony  with  the  party  is  clearly  shown 
in  the  administrations  of  Tyler  and  Johnson. 

If  both  the  President  and  Vice-president  should  die,  the 
succession  lies  with  the  members  of  the  Cabinet,  beginning 
with  the  Secretaries  of  State,  Treasury,  and  War,  and  con- 
tinuing in  the  order  in  which  the  portfolios  were  created. 
Before  1886,  by  the  law  of  succession  (which  may  be  altered 
by  Congress  at  any  time),  the  presiding  officer  of  the  Sen- 


The  President  291 

ate,  and  then  of  the  House,  was  to  become  President  in 
case  of  vacancy.  This  was  open  to  two  serious  objections. 
These  officials  might  belong  to  a  party  different  from  that 
of  the  President,  and  by  the  death  of  President  and  Vice- 
president,  when  there  was  no  president  pro  tempore  of  the 
Senate  or  speaker  of  the  House,  the  presidency  might  lapse 
altogether. 

336.  The  Inauguration.  —  The  inauguration  of  a  Presi-  The  cere- 
dent  occurs  on  the  4th  of  March  following  his  election.   ™°"y^"«i 

.     .  the  address. 

It  is  one  of  the  most  prominent  social  events  connected 

with  the  life  of  the  nation.    The  ceremony  is  quite  im-    This^ountry 

pressive,  and  always  draws  large  numbers  of  strangers  to  of  Ours, 

Washington.      After  taking  the  oath  of  office,  which  is   ^^"^' 

administered  by  the  chief  justice,  the  President  delivers 

his  inaugural  address.    This  may  outline  his  general  policy 

and  be  a  document  of  considerable  weight,  as  in  1800  and 

in  i860,  but  it  ordinarily  has  little  influence  on  the  course 

of  events. 

Immediately  after  the  inauguration  the  President  calls  First  months 
the  Senate  together,  unless  it  is  his  second  term.  To  it  '"  ° 
he  sends  his  nominations  for  cabinet  and  other  prominent 
officers,  who  have,  in  all  probability,  been  selected  several 
weeks  before.  He  is  apt  to  devote  most  of  his  time 
during  the  first  summer  to  the  selection  of  the  persons 
whom  he  shall  appoint  to  various  offices  under  the  gov- 
ernment. 

337.  Powers :  Historical.  —  When  the  Convention  met  in  Executive 
1787  the  feeling  of  distrust  of  "one-man  power"  was  quite  ^h^een,^*'* 
prevalent.     The  abuses  by  colonial  governors  had  been  so  century, 
numerous,  and  the  actions  of  George  III  so  objectionable,   coodnow 
that  the  first  state  constitutions  either  did  not  recognize  an   Comp.  Ad- 
executive  at  all,  or  placed  the  executive  powers  in  the  ^"*^^^*^ 
charge  of  a  committee;  or  if  the  executive  was  single,   61. 
reduced  his  powers  to  a  minimum.     A   slight  reaction 

against  this  extreme  position  occurred  during  the  next  ten 
years,  and  was  undoubtedly  strengthened  by  the  executive 
inefficiency  of  the  committees  of  Congress.     In  all  proba- 


292 


The  American  Federal  State 


Execution  by 
peaceful 
means  and 
through  the 
army. 

Harrison, 
113-H8. 


Ordinance- 
making 
power. 


Extent  of 
the  power. 

Schouler,  J. 
B.,  in  Forum, 
XXII I 

(1897). 
70-74. 


bility,  however,  the  extensive  powers  given  the  national 
executive  by  the  Constitution  was  due  to  the  expectation 
that  Washington  would  be  the  first  President,  and  popular 
confidence  in  him  made  the  national  and  state  conventions 
less  unwilling  to  grant  these  powers.  Yet  it  must  be 
admitted  that  our  early  executives  exercised  control  less 
through  their  constitutional  powers  than  through  their 
personal  influence. 

338.  The  Execution  of  Law.  —  The  oath  which  the  Presi- 
dent takes  upon  entering  ofifice  lays  upon  him  the  duty  of 
seeing  that  the  laws  are  faithfully  executed.  This  may  be 
done  in  one  of  two  ways :  by  the  regular  machinery  of  the 
executive  department,  or  by  the  use  of  arms,  i.e.  coercion. 
As  the  laws  generally  operate  upon  individuals,  it  is  seldom 
necessary  to  call  upon  the  military  forces  unless  the  oppo- 
sition to  the  law  is  widespread  and  takes  the  form  of  dis- 
order and  insurrection.  At  such  times  the  execution  of 
the  law  has  never  been  long  delayed,  except  in  the  case  of 
the  seceded  states. 

Frequently  the  laws  passed  by  Congress  are  general  in 
their  character,  and  in  administering  them  it  is  necessary 
for  the  President  or  his  assistants  to  arrange  the  details. 
They  are  thus  permitted  to  use  their  discretion  in  the 
methods  chosen  and  the  officials  through  whom  the  law  is 
administered.  These  details  are  regulated  by  ordinances 
which  give  the  executive  much  greater  power  than  he  would 
otherwise  have,  though  they  are  much  less  common  in  this 
country  than  in  England  and  France. 

339.  Military  Powers.  —  By  the  Constitution  the  Presi- 
dent is  made  commander-in-chief  of  the  army  and  the 
navy,  and  of  the  militia  when  in  active  service  of  the 
United  States.  In  ordinary  times  these  powers  are  of  com- 
parative insignificance;  but  in  great  crises  their  use  makes 
the  President  a  dictator.  This  was  plainly  the  case  with 
Lincoln  during  the  War  of  Secession.  According  to  Bryce, 
"Abraham  Lincoln  wielded  more  authority  than  any  single 
Englishman  has  done  since  Oliver  Cromwell."     It  was  by 


The  President 


293 


virtue  of  his  position  as  military  commander  that  he  sus- 
pended the  privilege  of  the  writ  of  habeas  corpus,  and  that 
he  issued  the  Emancipation  Proclamation. 

As  a  President  may  enforce  his  proclamations  by  mili- 
tary power,  they  rather  than  the  statutes  become  the  law 
de  facto.  The  extent  to  which  this  power  might  be  abused 
by  a  strong-headed  yet  incompetent  President  can  readily 
be  seen;  but  in  our  country  such  an  abuse  is  likely  to  be 
checked,  without  great  difficulty,  through  public  sentiment 
and  action  by  Congress. 

340.  Use  of  the  Army  in  Internal  Affairs.  —  The  Presi- 
dent is  also  authorized  to  keep  the  peace  of  the  United 
States  and  use  the  army  when  called  upon  by  the  state 
legislatures,  or  the  governor  when  the  legislature  is  not  in 
session.  This  power  has  been  used  most  frequently  in 
connection  with  strikes  covering  a  considerable  area. 
When  such  a  strike  leads  to  rioting,  which  in  turn  inter- 
feres with  interstate  commerce  or  the  United  States  mails, 
there  can  be  no  question  that  the  President  may  use  the 
army  with  or  without  the  application  of  the  state  executive. 
This  was  done  in  1894,  in  spite  of  the  protest  of  the 
governor  most  concerned. 

341.  The  Power  of  Appointment  in  History.  _  The  proper 
control  of  this  power  is  a  subject  to  which  great  consideration  has 
been  given  in  Anglo-Saxon  countries  for  the  last  two  centuries.  The 
extent  to  which  patronage  and  bribery  were  used  by  Walpole,  and 
afterward  by  Georgj  III,  in  order  to  maintain  a  majority  in  Parlia- 
ment, is  well  known.  During  the  Revolutionary  War  and  the  years 
immediately  following,  both  England  and  America  sought  a  solution 
of  the  problem :  the  one  by  giving  the  legislature  more  power  over 
the  executive;  the  other  by  placing  the  power  of  appointment  in  the 
hands  of  the  legislature.  In  the  Convention  of  1787  it  was  at  first 
proposed  to  leave  all  appointments  to  the  Senate.  Later,  the  Presi- 
dent was  given  the  right  to  choose  persons  for  all  important  places 
with  ratification  by  the  Senate,  and  the  others  could  be  vested  by 
Congress  in  whomever  it  pleased.  But  no  member  of  Congress  was  to 
hold  any  civil  office  under  the  United  States  or  to  be  appointed  to  one 
which  had  been  created  or  of  which  the  salary  had  been  increased 
during  the  term. 


Instances  of 
its  use. 

Harrison, 
118-125. 

Cf.  Story, 
Commenta- 
ries, f  §  1209- 
1215. 


Patronage  in 
the  eigh- 
teenth cen- 
tury. 

Eaton.  D.  B., 
in  Lalor,  III, 
139-145- 


294 


The  American  Federal  State 


Number  and 
importance 
of  appointive 
positions. 

Hinsdale, 
§§  491-496. 

Bryce,  44-48. 

Harrison, 
ibid.,  100- 
104, 107-112. 


Defects  of 
the  present 
methods. 

Eaton,  in 
Lalor,  I, 
580-582. 


342.  Appointment  at  Present.  —  As  there  are  nearly  two 
hundred  thousand  positions  besides  those  of  the  army  and 
navy  to  which  persons  must  be  appointed,  the  vastness  of 
this  power  is  evident,  especially  as  it  is  the  custom  for  a 
new  President  to  replace  incumbents  with  his  own  friends 
or  politicians  to  whom  he  or  the  party  leaders  are  indebted, 
even  when  his  predecessor  was  of  the  same  political  faith. 
It  would  of  course  be  absurd  for  the  President  to  try  to  fill 
all  of  those  personally,  and  most  of  the  minor  appointments 
have  been  left  with  officials  belonging  to  different  depart- 
ments. Nevertheless,  the  President  possesses  the  great 
nominal  power  of  appointing  to  all  important  places,  num- 
bering five  thousand.  These  include  the  members  of  the 
Cabinet  and  their  immediate  subordinates,  the  federal 
judges,  ambassadors,  ministers  and  consuls  and  the  highest 
class  of  postmasters.  All  of  these  appointments  must  be 
confirmed  by  the  Senate,  and  this  makes  a  great  deal  of 
difference  with  the  practical  working  of  the  system.  The 
Senate  now  seldom  refuses  to  confirm  those  whose  duties 
bring  them  into  close  relations  with  the  President,  e,g. 
heads  of  departments;  but  in  the  appointment  to  positions 
throughout  the  country,  the  President  seldom  refuses  to 
appoint  those  favored  by  the  senator  from  that  state.  This 
system  of  "  senatorial  courtesy  "  has  been  in  use  more  or 
less  since  the  government  was  first  organized,  but  has  been 
developed  because  rotation  in  office  became  the  rule  when 
the  presidency  became  democratic,  and  because  of  the 
executive  subordination  to  Congress  which  grew  out  of 
reconstruction  disputes. 

343.  Observations  on  the  Power  of  Appointment.  —  This 
duty  of  appointment  is  one  of  the  greatest  burdens  of  the 
presidency,  even  if  one  of  the  greatest  sources  of  influence. 
To  be  sure,  it  enables  the  incumbent  to  pay  political  debts, 
and  secure  aid  during  elections,  which  could  not  be  obtained 
without  the  promise  of  a  reward.  But  most  of  the  offices 
must  be  given  to  the  friends  or  assistants  of  others,  espe- 
cially the  senators.     For  this  reason  few  of  the  appointees 


The  President 


295 


represent  his  own  personal  preference;  the  great  majority 
are  selected  for  him,  or  are  picked  from  candidates  named 
by  political  leaders,  to  whom  he  is  practically  restricted. 
With  responsibility  so  scattered,  there  is  no  one  who  can 
be  blamed  or  praised  as  the  case  demands.  The  President 
is  bound  hand  and  foot  nine  times  out  of  ten,  and  the  only 
wonder  is  that  the  vicious  system  has  done  so  little  damage 
as  it  has. 

344.  Removals.  —  It  is  now  admitted  in  law  and  in  prac- 
tice that  the  President  has  the  right  to  remove  any  official 
he  may  appoint.  But  interesting  conflicts  have  occurred 
over  this  very  power.  The  Constitution  neglects  to  state  in 
whom  the  right  of  removal  is  vested,  and  during  the  first 
year  of  Washington's  administration  there  were  various 
opinions  regarding  it.  In  1 789  a  resolution  was  passed  by 
Congress  which  declared  that  it  belonged  to  the  President 
alone.  This  practice  was  changed  by  the  famous  Tenure 
of  Office  Act  that  was  passed  by  the  reconstruction  Con- 
gress (1867),  and  for  twenty  years  removals  required  the 
indorsement  of  the  Senate.  In  time  this  became  so  objec- 
tionable that  the  law  of  1867  was  repealed  in  1886,  so  that 
since  that  time  the  President's  power  of  removal  has  been 
plenary.  The  successor  is  at  once  appointed,  and  may 
hold  office  without  confirmation  till  the  close  of  the  next 
meeting  of  Congress. 

345.  The  Civil  Service.  —  As  almost  all  of  the  persons 
connected  with  the  United  States  government  belong  to 
the  administrative  service,  it  is  absolutely  necessary,  if 
good  results  are  to  be  obtained,  that  the  ones  appointed 
should  be  competent,  and  that  their  tenure  should  be 
secure.  Our  custom,  most  of  the  time  under  the  Consti- 
tution, has  been  in  violation  of  these  unquestioned  princi- 
ples. The  beginnings  of  the  spoils  system  are  usually 
traced  to  the  Crawford  Act  of  1820,  which  made  the  tenure 
in  the  treasury  department  four  years.  With  the  develop- 
ment of  ultra-democratic  ideas  later,  every  branch  was 
invaded,  and  not  even  a  four-year  term  guaranteed.     An 


Practice 
since  1789. 

Cf.  Federal- 
ist, No.  77. 

Hinsdale, 
hh  497-502- 

Eaton,  in 
Lalor,  III, 
565-569. 

Cleveland, 
in  At.  Afo., 
LXXXV 
(1900),  726- 
732- 


The  spoils 
system  and 
competitive 
examina- 
tions. 

Eaton,  in 
Lalor.  I. 
478-485. 

Lodge,  Hist, 
and  Pol. 
Essays,  114- 
137- 


296 


The  American  Federal  State 


Executive 
and  legisla- 
ture never 
entirely 
separate. 

Johnston,  in 
Lalor,  III, 
1064-1067. 


Character  of 
the  annual 
message. 


attempt  at  reform  was  made  in  the  early  seventies  under 
Grant,  but  failed.  In  1883  the  Pendleton  bill  was  passed, 
a  civil  service  commission  was  created,  and  competitive 
examinations  were  required  for  certain  positions,  whose 
number  may  be  increased  or  diminished  by  executive  order. 
Since  that  time  progress  has  been  steady,  till,  in  1897, 
nearly  one-half  of  all  government  positions  were  filled  in 
this  way,  87,000  out  of  a  total  of  180,000.  In  1899  Presi- 
dent McKinley  issued  an  order  taking  nearly  10,000  posi- 
tions from  the  classified  service,  where  it  was  thought  that 
the  civil  service  law  was  unsatisfactory.  While  the  laws 
may  have  been  far  from  perfect,  and  the  system  is  as  yet 
crude,  it  marks  a  vast  advance  over  that  in  use  before ;  and 
it  will  in  time  be  improved,  as  needs  make  themselves 
felt.  If  certain  other  positions,  especially  those  con- 
nected with  the  diplomatic  and  consular  service,  could 
be  added,  the  gain  would  be  much  greater.  The  friends 
of  reform,  however,  feel  grateful  that  every  attempt  of 
Congress  to  return  to  the  old  system  has  been  baffled  by 
public  opinion. 

346.  Legislative  Powers ;  Historical.  —  That  the  complete 
separation  of  the  three  great  departments  is  theoretical 
rather  than  practical,  is  shown  by  the  fact  that  even  in 
1787  no  attempt  was  made  to  leave  the  executive  without 
legislative  duties.  We  have  already  seen  the  great  part 
played  by  the  King  in  the  business  of  legislation,  and  we 
find  a  survival  of  these  executive  powers  in  those  assigned 
the  President.  The  Crown's  initiative  in  legislation  appears 
in  the  President's  message,  while  the  Crown  as  a  third 
house  has  been  changed  into  a  modified  veto  upon  all 
legislation.  A  century's  development  has  shown  the  wis- 
dom of  these  constitutional  provisions,  and  has  led  to  other 
relations  between  the  two  departments  not  contemplated  by 
the  constitutional  Convention.  This  important  subject  will 
be  considered  in  another  chapter  (XVII). 

347.  The  Message. — The  President's  annual  message  is 
always  sent  to  Congress  the  first  week  of  each  session.     It 


The  President  297 

is  usually  little  more  than  a  summary  of  the  work  of  each 
of  the  executive  departments,  with  some  suggestions  on 
that  work.  Occasionally  a  large  part  of  the  message  is 
taken  up  with  the  formation  and  statement  of  some  policy; 
but  this  is  not  common,  as  the  message  nowadays  exerts 
but  little  influence  on  the  course  of  legislation.  A  notable 
exception  was  the  tariff  message  of  Cleveland,  in  1887. 
When  the  Presidents  were  in  closer  touch  with  Congress, 
the  message  had  an  importance  that  it  now  lacks,  and  the 
houses  often  spent  considerable  time  in  "Committee  of 
the  Whole  on  the  State  of  the  Union"  considering  the 
policy  of  the  President. 

Special  messages  are  often  sent.  If  these  relate  to  some  Special  mes- 
subject  of  great  popular  interest,  their  influence  upon  leg-  **s^*- 
islation  is  marked  and  immediate,  e.g.  when  McKinley 
asked  for  money  to  render  the  army  and  the  navy  more 
efficient,  in  the  spring  of  1898,  before  war  had  been  de- 
clared, both  houses  passed  the  bill  by  almost  unanimous 
votes,  and  the  House  within  a  space  of  two  hours.  But 
even  with  special  messages,  it  is  the  pressure  of  public 
opinion,  rather  than  the  power  of  the  President,  that  leads 
to  favorable  action. 

348.  The  Veto.  —  During  the  early  part  of  the  century   importance 
the  veto  was  seldom  used,  and  when  employed  was  effec-  °  '  ^  ^^*°' 
tive,  as  but  one  bill  was  passed  over  it  before  the  adminis-   Bryce,  41-44, 
tration  of  Johnson.    Since  •^hen  it  has  been  employed  more      ^ 
often,  but  usually  upon  bills  of  minor  importance.     That  ^^'^^' 
it  gives  the  President  a  real  power  must  be  evident  if  we   134.' 
consider  that  legislative  bodies  seldom  possess  a  two-thirds  Q^\^y 
majority  in  favor  of  any  measure  likely  to  be  disapproved    Const' i  Law, 
by  the  executive,  and  that  this  disapproval  will  probably  '^^^^• 
influence  the  action  of  some  of  the  members.    The  "  pocket 
veto  "  really  gives  the  President  undue  power,  owing  to  the 
unfortunate  custom  of  passing  many  bills  during  the  last 
three  or  four  days  of  each  session ;  but  as  most  of  these  are 
ill-considered,  their  failure   is  less  of  an  injury  to  the 
country  than  their  success  would  have  been. 


298 


TJie  American  Federal  State 


Veto  and 
appropria- 
tion bills. 

Johnston,  in 
Lalor,  III, 
643-645. 


Treaties  and 
statutes. 

The  making 
of  treaties. 

Hinsdale, 
h\  485-490. 

Story,  Com- 
mentaries, 
h\  1504-1523- 

Harrison, 
134-141. 

Cooley, 
Const  I  Law, 
30,  106. 

Boutwell, 
Const,  at  End 
of  Century, 
293-296. 


Changes  that 
may  be  nec- 
essary. 


The  President  does  not  possess  the  right  conferred  upon 
some  state  governors  of  selecting  particular  provisions  of 
appropriation  bills  which  he  may  disapprove  and,  there- 
fore, wish  to  veto.  As  the  appropriation  is  absolutely 
necessary,  Congress  has  often  found  occasion  to  attach 
other  bills,  called  "riders,"  to  the  appropriation  bills  in 
order  to  keep  one  house  or  the  President  from  preventing 
their  passage. 

349.  Treaties. — While  the  making  of  treaties  is  diplo- 
matic, and  not  legislative,  it  ranks  as  but  little  less  impor- 
tant than  the  power  to  make  laws.  With  the  Constitution 
and  the  United  States  statutes,  the  treaties  constitute  a  part 
of  the  supreme  law  of  the  land;  a  treaty  legally  supersed- 
ing a  previously  existing  statute  with  which  it  is  in  conflict, 
although  it  in  turn  may  be  abrogated  by  a  later  law  and 
may,  in  fact,  be  practically  nullified  by  the  failure  of  Con- 
gress to  make  appropriations  or  pass  laws  necessary  to  carry 
it  out.  The  part  played  by  Congress  in  the  making  of 
treaties  is  undoubtedly  responsible  for  this  somewhat 
anomalous  condition.  While  the  treaty  must  be  ratified 
by  two-thirds  of  the  Senate,  the  character  of  the  work  of 
negotiation  requires  that  it  shall  be  done  as  secretly  as 
possible,  and  through  the  proper  executive  department. 
But  as  a  good  treaty  that  will  be  rejected  is  less  valuable 
than  one  with  more  imperfections,  but  acceptable  to  the 
Senate,  the  members  of  the  Committee  of  Foreign  Affairs 
are  usually  consulted  before  the  negotiations  are  closed. 
Even  then  it  may  be  impossible  to  obtain  the  consent  of 
the  necessary  two-thirds. 

Were  we  surrounded  by  powerful  neighbors,  our  foreign 
relations  would  be  vastly  more  complicated  than  they  are, 
and  our  present  methods  would  present  grave  dangers  in 
two  ways.  First,  we  should  find  that  our  cumbersome 
method  of  making  a  treaty  would  have  to  be  replaced  by 
one  simpler,  but  more  effective,  withal  less  democratic. 
Second,  we  could  hardly  avoid  international  complications 
due  to  the  fact  that  the  administration  of  many  matters 


The  President  299 

with  which  our  treaties  deal  has  been  left  to  the  state 
governments. 

350.  Other  Foreign  Affairs.  —  Closely  connected  with  the  Acquisition 

treaty-making   power  are   two    others  of   great   practical   oftemtory. 

importance.     One  of  these  grows  directly  out  of  the  power  Johnston,  in 

to  make  treaties — it  is  the  one  that  deals  with  the  acqui-  „.^'  ' 

^        93-99- 
sition  of  territory.     As  we  have  seen  (§§  156,  157),  the 

Louisiana  difficulty  was  solved  in  that  way,  and  since  that 
time  there  has  been  little  or  no  question  that  the  President 
possesses  the  initiative  in  extending  our  limits.  When  we 
consider  how  our  history  might  have  been  different  with 
the  Mississippi  as  our  western  boundary,  and  how  it  is 
likely  to  be  changed  through  the  control  of  our  new  colo- 
nies, we  certainly  cannot  doubt  that  the  executive  possesses 
a  very  great  power. 
The  second  of  these  powers  comes  from  the  President's  Recognition 

right  to  receive  and  dismiss  the  representatives  of  other  of  foreign 

governments, 
nations,  and  deals  with  the  recognition  of  a  foreign  govern- 
ment when  two  parties  each  claim  to  possess  control  of  it, 
or  when  the  independence  of  some  colony  that  has  thrown 
off  the  provincial  yoke  is  involved.  Notwithstanding  the 
claim  that  Congress  could  settle  all  such  questions  by  its 
independent  action,  an  unbroken  line  of  precedents  leaves 
the  decision  entirely  with  the  President. 

351.  Judicial  Power. — The  King's  position  as  the  foun-  Reprieves 
tain  of  justice  survives  in  the  power  of  pardoning  and  ^"^  pardons, 
reprieving.     This  extends  to  all  offences  except  that  of  Harrison, 
impeachment.     An  effort  was  made  immediately  after  the   ^ '  '  ^^^ 
War  of  Secession  to  make  an  exception  of  treason  as  well, 

but  it  was  unsuccessful.  In  time  of  peace  this  power  does 
not  possess  the  significance  that  attaches  to  the  pardon  of 
the  state  governors,  because  of  the  difference  in  conditions. 
The  number  of  offences  against  national  law  are  compara- 
tively few,  and  the  chance  that  the  President  will  seek  to 
make  political  capital  by  a  free  exercise  of  the  right  to 
pardon  is  much  less  to  be  feared. 


300  The  American  Federal  State 

QUESTIONS  AND   REFERENCES 
Election  (§§  326-336) 

a.  Tables  showing  votes  in  presidential  elections  are  given  in  John- 
ston, American  Politics,  Appendix ;  in  some  Political  Almanacs;  in 
Stanwood's  History  of  the  Presidency,  under  each  campaign ;  and  by 
Johnston,  in  Lalor,  II,  53-60  (to  1880). 

b.  On  the  election  of  1876,  consult  Johnston,  in  Lalor,  II,  50-53; 
Stanwood,  History  of  the  Presidency,  356-393;  Cox,  Three  Decades 
of  Federal  Legislation,  651-668. 

1.  What  advantage  would  be  derived  from  making  the  heads  of  the 
departments  more  independent  of  the  President  ?  what  disadvantage 
would  there  be  ? 

2.  Summarize  the  benefits  of  a  four-year  term;  one  of  six  years. 
If  we  had  civil  service  reform  for  almost  all  of  the  positions  in  the 
executive  department,  would  reelection  be  less  objectionable  ? 

3.  Was  the  first  method  of  electing  the  President  better  in  any  way 
than  that  now  in  use  ?  Do  we  need  a  change  in  the  present  method  ? 
How? 

4.  Show  whether  fraud  and  intimidation  would  have  more  influence 
over  the  result  if  there  were  election  by  popular  vote  or  by  states. 

i.  During  the  last  presidential  campaign,  what  candidates  were 
before  the  conventions  ?  How  many  ballots  were  cast  at  each  ?  Was 
there  any  dispute  over  any  plank  of  the  platform  ?  If  so,  what  one  ? 
What  was  the  vote  on  it  ?  Compare  the  last  nomination  with  those 
since  1876.     (Some  Pol.  Als.  for  votes  on  candidates.) 

ii.  How  many  members  of  the  "electoral  college  "  are  there?  How 
many  are  necessary  to  a  choice  ?  Study  the  electoral  and  popular 
votes  in  recent  elections.  Have  we  had  any  minority  Presidents 
since  the  Civil  War  ?  If  so,  when  ?  How  many  electors  has  your 
state  ?     How  have  they  voted  in  recent  elections  ? 

iii.  Who  were  the  delegates-at-large  from  your  state  and  the  dele- 
gates from  your  district  to  the  last  Republican  and  Democratic  con- 
ventions ?  Who  were  the  electors  in  your  state  ?  Did  the  convention 
or  the  college  get  the  better  and  the  more  prominent  men  ?  Can  you 
account  for  this  state  of  things  ? 

iv.  What  Presidents  have  been  chosen  west  of  the  Mississippi  ? 
What  states  have  had  the  greatest  number  ?  Do  you  notice  any  ten- 
dency to  select  Presidents  from  particular  sections  during  special 
periods?    Can  you  give  any  reasons  for  this  ? 


The  President  30 1 


Executive  and  Administrative  Powers  (§§  337-345) 

a.  Compare  the  executive  in  England,  France,  Germany,  and  the 
United  States.  Wilson,  The  State,  §§  415-418  (Fr.),  498,  530-542 
(Ger.);  Burgess,  Comparative  Constitutional  Law,  \l,  185-215  (Eng)., 
216-263  (U.  S.),  264-287  (Ger.),  288-306  (Fr.),  306-319  (comparison 
of  all). 

1.  Is  it  wise  to  have  great  civil  and  military  power  centred  in  a 
single  individual  ?  Have  our  war  Presidents  been  elected  on  military 
records  ?  Would  it  have  been  more  satisfactory  to  have  had  them 
exercise  no  war  powers  ?  Have  our  generals  made  better  Presidents 
than  the  average  non-military  President  ? 

2.  What  objections  may  be  urged  against  the  use  of  the  United 
States  army  in  internal  affairs  ?     Are  they  well  grounded  ? 

3.  Can  you  suggest  any  way  of  securing  greater  responsibility  for 
the  appointments  under  the  executive  department  ? 

4.  Of  what  does  civil  service  reform  consist  ?  What  are  the  dan- 
gers of  too  permanent  tenure  ?  Are  examinations  a  satisfactory  test 
of  fitness  ? 

i.  Name  a  recent  instance  of  the  use  of  military  force  by  the  United 
States  in  suppressing  riot.  What  reason  was  there  for  national  inter- 
ference ?     Were  there  any  protests  from  any  quarter  ? 

ii.  Consider  to  what  extent  the  President  considered  his  own  wishes 
in  these  appointments:  the  Secretary  of  War;  the  governor  of  New 
Mexico ;  the  ambassador  to  France ;  the  consul  at  Hamburg ;  the 
postmaster  of  your  own  town;  the  United  States  marshal  of  your  dis- 
trict ;   the  collector  of  the  nearest  port. 

iii.  What  persons  connected  with  the  postal  service  are  appointed 
under  competitive  examinations  ? 

Legislative  Power  (§§  346-351) 

1.  Does  the  veto  give  the  President  too  much  power  over  Congress  ? 
Has  it  been  abused  ?  Select  instances  where  it  has  been  productive 
of  good  results. 

2.  Should  the  President  be  granted  exclusive  power  to  make 
treaties  ?  What  check  is  there  upon  executive  action  regarding  the 
acquisition  of  foreign  territory  and  the  recognition  of  foreign  gov- 
ernments ? 

3.  Would  it  be  desirable  to  discontinue  the  President's  message  or 
any  feature  of  it  ?  Should  it  be  obligatory  upon  Congress  to  consider, 
under  the  form  of  a  bill,  suggestions  of  the  President  ? 


302  The  American  Federal  State 

i.  What  were  some  of  the  bills  vetoed  by  Johnson  ?  What  was  ths 
character  of  most  of  those  vetoed  by  Cleveland  ?  What  was  the  occa* 
sion  of  the  last  veto  ?     Its  effect  ? 

ii.  Look  up  the  last  presidential  message.  Is  it  full  of  "  glittering 
generalities "  ?  \Vhat  portion  of  it  is  devoted  to  foreign  affairs  ? 
finance  ?  colonies  ?  What  policy  is  suggested  ?  (American  monthly 
R,  of  R.  for  last  January,  etc.) 

iii.  What  important  treaties  were  ratified  by  the  last  Senate? 
Where,  and  by  whom,  were  they  made? 


CHAPTER   XV 

THE  EXECUTIVE  DEPARTMENTS 
General  References 

Willoughby,  Rights  and  Duties  of  American  Citizenship,  21 5-241. 
Excellent. 

Clark,  Outlines  of  Civics,  61 -7 1.    Brief,  but  detailed. 

Congressional  Directory.  The  best  summary  of  the  work  of  each 
bureau  and  division. 

Dawes,  How  We  are  Governed. 

Harrison,  This  Country  of  Ours.  By  far  the  best  general  description 
and  popular  account. 

Lamphere,  The  United  States  Government. 

Elmes,  Executive  Departments.    Quite  full,  but  not  recent. 

Guggenheimer,  Development  of  the  Executive  Departments  (under  the 
Confederation)  ;  in  Jameson,  Essays  in  the  Constitutional  His- 
tory of  the  United  States. 

Lalor's  Cyclopedia,  under  the  difierent  departments. 

352.  Introduction.  —  While  the  power  of   our  national  The  heads  oi 
executive  belongs  almost  exclusively  to  the  President,  the  departments 

...  .  ....  .11  .         as  a  Cabinet. 

administration  of   its  business  rests  with   the   executive 
departments.     At  present  there  are  nine  of  these,  the  de-  ^'7*^'  ^-i°- 
partments  of  State,  the  Treasury,  War,  Navy,  Post-office,    Harrison. 
Interior,  Justice,  Agriculture,  and  Labor.    At  the  head  of  c/Ours" 
each  department  is  a  secretary,  appointed  by  the  President   io4-io7. 
and  personally  responsible  to  him.    While  the  heads  of  the  Wilson, 
departments  (except  that  of  Labor),  collectively,  form  the   ^'^^-  ^'^''• 
Cabinet,  they  influence  the  action  of  the  President  more  as 
the  heads  of  departments  than  as  members  of  the  Cabinet. 
The  Cabinet  as  such  has  no  policy  of  its  own,  and  even  if 
it  had  one  the  President  would  be  in  no  way  bound  to 
follow  it;  but  he  is  quite  likely  to  leave  the  administration 

303 


304 


The  American  Federal  State 


Clerical  and 

diplomatic 

duties. 

Harrison, 
187-193. 

Schuyler, 
Amer.  Diplo- 
macy, chap. 
I.,  esp,  pp. 
6-14. 


of  the  affairs  in  the  departments  to  their  respective  chiefs. 
These  officials  are  usually  aided  by  quite  a  number  of  assist- 
ants and  by  many  heads  of  bureaus  and  divisions,  in  whom 
is  often  vested  considerable  power  of  appointment  and 
some  discretion  as  to  management. 

353.  Duties  of  the  Secretary  of  State.  —  Because  the 
department  of  State  attends  to  all  affairs  concerning  our 
relations  with  other  countries,  it  is  placed  first  in  the  list  of 
departments.  Its  principal  duties  are  of  two  kinds:  first, 
those  of  a  clerical  nature,  such  as  the  enrolment  of  the 
laws,  the  care  of  the  archives,  and  the  keeping  of  the  Great 
Seal.  Second,  those  that  deal  with  foreign  nations.  The 
latter  may  be  subdivided  into  those  that  are  really  diplo- 
matic and  those  that  affect  the  consular  service.  The 
diplomatic  duties  are  the  most  important  as  they  have  the 
greatest  bearing  upon  affairs  of  state.  As  the  secretary  is 
usually  a  man  skilled  in  international  law,  and  is  assisted 
by  men  who  are  experts,  the  negotiation  of  treaties,  under 
certain  limitations  laid  down  by  the  President,  is  ordi- 
narily left  in  his  hands.  In  this  foreign  intercourse  it 
would  be  awkward  for  our  secretary  to  communicate  directly 
with  the  foreign  secretary  of  the  nation  interested,  so  nego- 
tiations are  conducted  at  the  capital  of  one  country,  the 
other  being  represented  by  its  ambassador  or  by  envoys 
appointed  for  the  occasion.  In  cases  of  peace  treaties 
after  hostilities  have  ceased,  some  neutral  capital  is  selected 
and  special  commissioners  are  employed. 


For  a  list  of  the  bureaus  and  divisions  into  which  the  departments 
are  divided,  and  for  a  summary  of  the  duties  assigned  to  each  secre- 
tary, assistant,  commissioner  of  bureaus  or  heads  of  divisions,  the  stu- 
dent is  referred  to  the  Congressional  Directory.  As  these  books  are 
easily  obtained,  no  details  of  that  character  need  be  given  in  this 
chapter. 


Classes  of 
diplomatic 
representa- 
tives. 


354.  The  Diplomatic  Service.  —  Our  business  of  a  diplo- 
matic nature  is  intrusted  to  ministers  and  assistants  at  the 
capitals  of  all  important  foreign  countries.     Our  ministers 


The  Executive  Departments 


305 


to  the  great  nations  are  called  ambassadors,  to  other  nations 
ministers  plenipotentiary  or  ministers  ordinary.  We  may 
be  represented  merely  by  a  charge  iV affaires,  a  secretary  of 
a  legation,  or  may  conduct  our  business  through  the  min- 
ister of  some  other  power.  These  officials  are  party  men, 
whose  tenure  is  therefore  insecure.  They  are  chosen  not 
necessarily  on  account  of  their  fitness  for  these  positions, 
but  for  many  other  reasons.  Neither  they  nor  their  chief 
assistants  are  trained  for  their  work;  but  in  spite  of  this 
defect  our  diplomatic  service  compares  very  favorably  with 
that  of  most  other  countries. 

355.  Consuls.  —  The  work  of  our  consular  service  is 
almost  purely  of  a  business  nature.  The  consuls  are  agents 
living  in  all  the  important  cities  of  the  globe.  Their  duties 
are  many.  They  attend  to  the  business  of  our  government 
at  that  place,  keep  us  posted  as  to  the  business  conducted 
there,  especially  the  character  of  its  exports,  and  look  after 
American  merchants,  seamen,  or  tourists  who  may  need 
assistance  of  any  kind.  Among  certain  semi-barbarous 
peoples,  cases  affecting  Americans  are  brought  up  for  trial 
before  the  consul  rather  than  in  the  courts  of  the  country. 
It  has  been  our  custom  to  change  consuls  with  a  change  of 
administrations  at  Washington,  although  certain  posts  where 
the  remuneration  is  small  have  been  left  in  the  hands  of 
resident  merchants.  This  custom  has  been  most  unfortu- 
nate. The  best  of  men  cannot  do  satisfactory  work  for  the 
first  year  or  two  in  a  position  where  the  language  and  the 
conditions  are  entirely  unknown  ;  and  where  a  consulship 
is  given  solely  as  a  reward  for  party  service,  and  the  tenure 
is  brief,  the  result  cannot  be  in  doubt. 

356.  Reform  of  the  System.  — That  our  diplomatic  and 
consular  service  has  not  been  more  of  a  failure  has  been 
due  undoubtedly  to  the  great  adaptability  of  the  American 
temperament.  But  because  of  that  very  characteristic,  our 
system  should  have  been  the  best  in  existence;  and  it  can 
be  made  so.  The  prime  necessity  is  a  corp  of  competent 
and  trained   men,   fully  equipped   for  the   special   work 


Woolsey, 
International 
Law,  §  98. 

Harrison, 
194-196. 

Curtis,  U.  S. 
and  Foreign 
Powers, 
chap.  I. 


Consular 
duties. 

Woolsey, 
§^99, 100. 

Curtis,  chap. 
I. 

Schuyler, 
Amer.  Di- 
plomacy, 1 1. 


Chauges 
needed. 

Parker,  G.  P.. 
in  At.  Mo., 
LXXXV 
(1900),  669- 
683. 


3o6 


The  American  Federal  State 


assigned  them  and  held  to  their  best  efforts  by  reasonable 
permanence  of  tenure  and  promotion  on  merit.  The  first 
step  has  been  taken  by  applying  certain  rules,  with  some  of 
these  objects  in  view,  to  the  lowest  classes  of  consuls,  but 
the  whole  consular  service  and  the  diplomatic  assistants 
should  be  included.  It  may  well  be  questioned  whether 
it  would  be  advisable  to  make  technical  requirements  of 
the  ambassadors  to  the  leading  powers.  The  high  charac- 
ter of  the  officials  appointed  to  those  positions  in  recent 
years  does  honor  to  our  country,  and  in  all  probability  we 
should  have  been  denied  their  services  if  routine  training 
had  been  a  prerequisite. 

As  the  consuls  are  business  agents,  the  work  they  do  is  more  closely 
connected  with  that  of  the  Treasury  department  than  with  the  rest  of 
the  department  of  State.  It  seems  probable  that  if  a  department  of 
Commerce  is  created  according  to  suggestions  made  in  Congress  re- 
cently, the  consular  service  will  be  entirely  remodelled,  and  placed 
under  the  control  of  the  new  Secretary  of  Commerce. 


Purpose. 


History. 

Harrison, 
233-240. 


357.  The  Post-office;  History  and  Purpose. — The  post- 
office  is  the  only  important  example  of  a  business  actually 
conducted  by  the  national  government.  The  object  is  not 
to  make  money,  but  to  give  the  people  the  best  service 
possible  at  practically  cost.  The  department  has,  in  fact, 
been  run  at  a  loss  for  many  years. 

The  postal  system  was  under  the  control  of  the  govern- 
ment even  in  colonial  times,  but  the  rates  were  exorbitant 
and  methods  in  use  were  very  different  from  those  of  the 
present.  Letters  were  often  the  only  things  carried,  stamps 
were  not  used,  and  postage  was  not  paid  in  advance.  After 
Sir  Rowland  Hill  had  demonstrated  in  England  the  advan- 
tages of  stamps  and  a  reasonable  rate,  not  dependent  on 
the  distance,  we  adopted,  in  1847,  a  modification  of  this 
plan.  Rates  have  been  lowered  as  rapidly  as  possible  and 
routes  extended  to  all  parts  of  the  country.  Free  delivery 
has  been  given  to  cities  and  many  towns,  while  experiments 
have  been  made  with  it  in  rural  districts. 


The  Executive  Departments 


307 


358.  Organization  and  Work  of  the  Post-office.  —  Post- 
offices  are  divided  into  four  classes,  according  to  the 
amount  of  business  transacted.  Postmasters  are  appointed 
by  the  President  for  the  first  three  classes,  but  they  number 
only  four  thousand.  The  other  seventy  thousand  are  ap- 
pointed by  the  Postmaster-general.  None  of  these  officials 
are  subject  to  the  civil  service  rules,  but  all  mail  clerks 
and  carriers  are  obliged  to  pass  examinations. 

Mail  matter  belongs  to  one  of  four  classes.  The  first  in- 
cludes letters;  the  second,  periodicals;  the  third,  books; 
and  the  fourth,  merchandise.  In  addition,  the  depart- 
ment issues  money  orders  payable  at  any  post-office  or  at 
certain  points  abroad.  For  the  carrying  of  the  mail,  con- 
tracts are  made  by  the  Postmaster-general  with  steamship 
and  railway  lines,  and  with  individuals. 

359.  Defects  of  the  Postal  System.  —  It  cannot  be  said 
that  our  post-office  is,  in  all  respects,  a  well-conducted 
business.  Even  though  there  is  no  desire  on  the  part  of 
the  government  to  make  profit  out  of  the  department,  there 
does  not  seem  sufficient  reason  for  many  unfortunate  cus- 
toms. The  selection  of  postmasters  without  special  regard 
to  preparation  for  their  duties,  and  the  frequent  changes 
necessary,  are  in  themselves  costly.  The  expenditures  for 
the  transportation  and  delivery  of  second-class  mail  matter 
is  several  times  as  much  as  the  revenue  obtained  from  this 
source,  this  enormous  loss  being  justified  on  the  ground 
that  the  literature  thus  carried  is  a  means  of  educating  the 
people.  Another  practice  liable  to  abuse  arises  from  the 
privilege  given  congressmen  and  others  of  sending  out  gov- 
ernment publications  free  of  postal  charges.  Another  seri- 
ous defect  is  caused  by  the  frequent  payment  to  different 
organizations  of  sums  larger  than  those  required  by  express 
companies  for  similar  services. 

360.  The  Secretary  of  the  Interior.  —  The  duties  of  the 
Secretary  of  the  Interior  are  of  the  most  varied  character. 
His  department  is  broken  up  into  bureaus  that  have  duties 
in  no  way  related  to  each  other,  but  of  the  greatest  impor- 


Fout  classes 
of  post- 
offices. 


Four  classes 
of  mail  mat- 
ter. 


Defects  in 
organization 
and  methods. 

Harrison, 
242-250. 

Loud,  E.  P., 
in  N.  A.  /?., 
166  (1898), 
342-349- 


Many  impor- 
tant duties. 

Harrison, 
268-270. 


3o8 


The  American  Federal  State 


Educational 
grants  and 
homestead 
acts. 

Harrison, 
269-279. 

Willoughby, 

Citizenship, 

225-229. 


Liberal  pen- 
sion policy. 

Harrison, 

285-286. 

Casselman, 
A.  B.,  in  Cen- 
tury, XXIV 

(1893).  13s- 
140. 


tance  in  themselves.  They  deal  with  public  land,  pen- 
sions, Indian  affairs,  patents,  education,  railways,  the 
census,  and  other  domestic  affairs.  As  ex- President  Har- 
rison says,  "The  Secretary  must  pass  finally  in  the  depart- 
ment upon  questions  of  patent  law,  pension  law,  land  law, 
mining  law,  the  construction  of  Indian  treaties,  and  many 
other  questions  calling  for  legal  knowledge,  if  the  judg- 
ment of  the  Secretary  is  to  be  of  any  value."  He  has  been 
called  upon  to  decide  questions  involving  millions  of  dol- 
lars, and  to  assist  him  in  this  legal  work  has  a  special 
assistant  attorney-general. 

361.  Our  Land  Policy.  — The  public  lands  of  the  United 
States  were  intended  at  first  to  be  a  profitable  investment. 
Extensive  surveys  were  made,  the  land  being  laid  out  in 
townships  six  miles  square,  composed  of  thirty-six  sections. 
Sales  were  made  except  of  the  sections  reserved  for  schools 
or  other  purposes.  These  school  lands  comprised  one  sec- 
tion of  each  township  before  1848,  after  which  two  were 
given;  and  during  the  sixties  general  grants  of  other  lands 
for  the  aid  of  state  agricultural  schools  were  made.  Since 
1862  lands  have  been  acquired  by  settlers  under  the  Home- 
stead Act.  This  enables  any  citizen,  or  person  who  intends 
to  become  a  citizen,  to  buy  a  quarter-section  at  half  price 
by  making  his  home  on  it  for  two  and  one-half  years,  or  to 
acquire  title  at  a  nominal  figure  by  living  on  it  five  years. 
Especially  favorable  terms  are  given  veterans.  Under  the 
act  large  portions  of  the  West  have  been  settled  by  immi- 
grants from  the  Eastern  states  and  from  Europe. 

362.  Pensions. — While  this  bureau  does  nothing  more 
than  apply  the  laws  of  Congress,  the  subject  itself  deserves 
some  notice.  It  is  only  during  recent  years  that  our  pen- 
sion list  has  grown  very  large,  the  policy  for  twenty-five 
years  after  the  War  of  Secession  being  to  grant  pensions  to 
those  alone  who  were  injured  in  actual  service.  The  law 
of  1890  makes  it  practically  possible  for  any  one  who  was 
in  the  Union  army,  for  even  a  brief  period  during  the  war, 
to  secure  a  pension,  provided  he  is  now  disabled.     There 


The  Executive  Departments  309 

can  be  no  doubt  of  the  duty  which  our  government  owes 
to  those  whose  sacrifices  brought  great  suffering  upon  them- 
selves or  their  relatives;  but  the  wisdom  of  our  present  lib- 
eral legislation  has  been  seriously  questioned  by  some  men 
whose  patriotism  is  above  reproach. 

363.  Indian  Affairs.  —  The  care  and  development  of  the   Policy  before 

Indian  is  one  of  the  duties  we  owe  civilization.     Our  own  ^"'^  ^'"*^^ 

1871. 
growth  demanded  that  we  should  occupy  the  lands  that  were 

his,  but  the  act  of  dispossession  laid  upon  us  a  duty  to  pro-  28^8°"' 
tect  and  educate  him.  At  first  it  was  our  custom  to  make 
with  the  tribes  treaties  that  were  systematically  broken. 
Since  187 1  the  treaty  system  has  been  abandoned,  the 
Indians  have  been  treated  as  wards  of  the  nation,  more 
careful  attention  has  been  given  to  Indian  affairs,  and  the 
whole  subject  has  been  intrusted  to  a  commission  made  up 
of  first-class  men.  The  problems  of  education  and  civiliza- 
tion have  been  dealt  with  in  an  honest  spirit,  and  an  attempt 
is  being  made  to  solve  them  by  making  the  Indian  a  citizen, 
giving  him  land  of  his  own,  and  training  him  to  some 
suitable  line  of  work. 

364.  Patent  Office.  —  The  great  material  progress  we  have   Process  in 
made  during  this  century  is  no  doubt  partially  due  to  the  ^^'^'"'"g  ^ 
patent  rights  given  by  the  government.     Any  person  may  * 
obtain  for  the  period  of  seventeen  years  the  exclusive  right  ^\  °^  ' 

to  make  articles  similar  to  his  invention,   provided   the   l^ior,  11 1, 

device  is  not  already  protected  by  patent.     When  applying  ^"'  ^^^' 

for  a  patent  a  person  sends  a  model  of  the  articles  upon 

which  the  patent  is  desired,  accompanied  by  the  necessary 

fee.    Careful  search  is  made  among  the  multitude  of  models 

in  the  patent  office,  and  if  no  proof  is  found  that  the  article 

has  been  patented  or  has  been  in  common  use  before,  letters 

patent  are  issued,  granting  a  monopoly  for  the  manufacture 

of  the  goods. 

Copyrights  were  formerly  issued  by  the  department  of  Process  in 

the  interior,  but  are  now  given  by  the  librarian  of  Con-  °^'*"l"Jg  * 
'  °  •^  copyright 

gress.  Sole  right  to  publication  is  given  for  twenty-eight 
years,  with  liberty  of  extension  for  fourteen  years  longer. 


3IO 


Tlu  American  Federal  State 


Putnam, 
Question  of 
Copyright 
(2d  ed.), 
i-3a- 


Spofford,  in 
Lalor,  II,  40, 
41  (educa- 
tion). 


Bureaus  of 
(the  Treasury 
department. 
Harrison, 

30a-220. 

Adams, 
Science  of 
Finance, 
194-201. 

Congres- 
sional Direc- 
tory, under 
Treasury 
department. 

(For  influ- 
ence of  de- 
partment, 
see  W  146- 
149.  396.598- 
603.) 


An  effort  has  been  made  to  secure  what  is  known  as  "  inter- 
national copyright,"  to  protect  our  writers  from  cheap  and 
unscrupulous  publishers  abroad  and  render  the  same  ser- 
vice to  foreign  writers  here,  but  it  has  been  only  partially 
successful. 

365.  Other  Bureaus  of  the  Interior  Department.  —  As  all 
matters  pertaining  to  education  are  left  with  the  states,  the 
Commissioner  of  Education  confines  his  labors  to  the  gath- 
ering of  statistical  information,  the  making  of  reports  and 
suggestions.  His  principal  aim  is  to  bring  about  uni- 
formity of  the  highest  grade  in  the  schools  of  the  land. 
The  Commissioner  of  Railroads  looks  after  all  the  interests 
of  the  government  connected  with  railways,  especially  those 
called  the  Pacific  railways.  The  Census  bureau  performs 
work  of  the  highest  value,  not  only  in  the  decennial  enu- 
meration of  the  people,  but  in  the  collection  of  statistics 
regarding  age,  sex,  and  nativity  of  the  population,  taxation, 
wealth,  public  indebtedness,  agriculture,  manufactures, 
occupations,  etc.  For  a  short  period  the  number  of 
employees  runs  up  to  many  tens  of  thousands,  the  chief 
positions  being  usually  occupied  by  experts. 

366.  The  Treasury  Department.  —  No  one  of  the  depart- 
ments has  exerted  a  more  potent  influence  upon  our  history 
than  the  Treasury.  The  means  by  which  it  affects  the  polit- 
ical and  business  world  are  indicated  in  the  chapter  on 
Money,  so  an  outline  will  suffice  here.  The  Secretary  of 
the  Treasury  is  instructed  to  make  plans  for  the  manage- 
ment of  the  revenue,  to  look  after  its  collection,  and  super- 
vise all  fiscal  operations  of  the  government.  He  is  assisted 
by  three  Assistant  Secretaries;  several  Auditors  for  the  dif- 
ferent executive  departments;  the  Treasurer,  who  has  charge 
of  the  receipt  and  disbursement  of  money;  a  Controller 
of  the  Treasury,  who  supervises  all  accounts  that  are  in 
dispute;  a  Controller  of  the  Currency,  who  oversees  all 
national  banks  (§  602) ;  the  Director  of  the  Mint,  who  has 
charge  of  all  coinage  (§  604) ;  the  Superintendent  of  the 
Bureau  of  Engraving  and  Printing;  the  Commissioner  of 


The  Executive  Departments  311 

Internal  Revenue,  who  oversees  the  collection  of  revenue 
from  that  source  (§§  581-585);  besides  several  others,  some 
of  whom  have  nothing  whatever  to  do  with  finance,  as  the 
Superintendent  of  the  Coast  and  Geodetic  Survey.    Among  Regulations 

the  officials  of  the  Treasury  department  is  the  Commis-  '■^^^^'^'^s 

"'         '^  immigration, 

sioner-general  of  Immigration,  who  supervises  the  admin- 
istration of  all  regulations  relative  to  immigrants.  The 
laws  at  present  in  force  exclude  all  Chinese  laborers,  idiots, 
paupers,  criminals,  and  persons  under  contract  to  work  in 
competition  with  American  labor. 

367.  The  War  Department.  —  Although  not  often  an  army  The  Secre- 

officer,  the  Secretary  of  War  is  the  real  commander  of  the  *^^  f"*^  '^^ 
/  assistants. 

army,  supervising  its  organization,  equipment,  and  move- 
ments. His  action  is,  of  course,  subject  to  the  approval  of  ^j^.^ja. ' 
the  President  as  commander-in-chief,  but  he  ranks  above 
the  general  of  the  army.  In  times  of  peace  he  is  a  person 
of  little  power,  and  in  case  of  war  it  has  been  the  custom 
to  leave  the  direction  of  the  armies  to  the  commanding 
general.  He  is  assisted  by  the  Quartermaster-general  in 
buying  most  of  the  army  supplies,  except  the  food,  which 
is  under  the  charge  of  the  Commissary-general,  and  the 
ordnance,  which  is  left  to  the  Chief  of  Ordnance.  The 
two  principal  cares  of  the  department  are  the  army  and 
the  coast  defence,  for  both  of  which  appropriations  have 
been  largely  increased  during  the  last  five  years.  The 
training  of  officers  for  the  army  is  conducted  at  West 
Point  Military  Academy,  the  appointment  of  cadets  be- 
ing, in  practice,  made  by  the  different  senators  and  repre- 
sentatives. 

368.  The  Navy  Department.  —  During   the   last   twenty   Present  im- 

years  interest  has  greatly  revived  in  naval  affairs.     The  T>°^^^^^  °^ 

the  dcp&rt- 
lessons  of  the  late  war  with  Spain  show  to  all  thoughtful   ment. 

persons  the  supreme  necessity  for  a  country  situated  as  ours   „ 

is  of  a  large  and  well-managed  navy.     At  the  present  time  251-267.  ' 

the  most  important  bureau  is  that  of  Construction  and 

Repair,  which  has  charge  of  all  plans  for  the  new  vessels. 

The  Secretary  of  the  Navy  bears  practically  the  same  rela- 


312 


The  American  Federal  State 


The  Attor- 
ney-general 
and  his 
assistants. 

Harrison, 
330-332. 

Spofford,  in 
Lalor,  II, 
663,  664, 


Four  chief 
duties. 

Harrison, 
289-291. 


Investiga- 
tion and 
reports. 

Harrison, 

293-295- 


Organization 
and  work. 


tion  to  the  President  and  to  his  subordinates  as  does  the 
Secretary  of  War. 

369.  The  Department  of  Justice.  —  The  United  States  has 
always  had  an  Attorney-general  to  advise  the  President  and 
members  of  the  Cabinet,  and  to  conduct  suits  in  the  higher 
courts;  but  it  was  not  till  187 1  that  the  department  of  Jus- 
tice was  organized.  It  consists  of  a  Solicitor-general,  four 
Assistant  Attorney-generals,  and  several  Attorneys,  who  re- 
lieve the  Secretary  of  the  great  bulk  of  legal  investigation 
and  pleading.  Had  the  Supreme  Court  been  willing  to 
advise  Washington,  when  he  asked  their  opinion  on  several 
questions  of  foreign  and  domestic  policy  (1793),  the  Attor- 
ney-general's duties  would  undoubtedly  have  been  less  im- 
portant. 

370.  The  Department  of  Agriculture.  —  The  Secretary  of 
Agriculture  did  not  become  a  member  of  the  Cabinet  until 
1889,  although  the  department  was  organized  in  1862.  His 
chief  duties  are  four  in  number:  (i)  He  supervises  the 
inspection  of  all  meats  that  are  exported;  (2)  makes  sci- 
entific experiments  with  different  plants  in  order  to  learn 
which  varieties  give  the  best  results;  (3)  sends  seeds  and 
information  to  farmers  desiring  them;  and  (4)  prepares, 
through  the  weather  bureau,  reports  of  the  probable  con- 
dition of  the  weather  in  all  parts  of  the  country.  While 
the  wasteful  distribution  of  seeds  has  caused  considerable 
adverse  criticism,  the  department  has  proved  itself  of  the 
highest  value  to  the  whole  community. 

371.  The  Department  of  Labor. — As  the  United  States 
government  leaves  the  control  of  industrial  corporations  to 
the  states,  the  Commissioner  of  Labor  is  of  necessity  con- 
fined almost  wholly  to  gathering  statistics,  making  investi- 
gations, preparing  reports,  and  offering  suggestions.  While 
the  work  of  the  department  has  proved  of  value,  it  has  not 
led  to  tangible  results  by  greatly  affecting  the  legislation  of 
the  country. 

372.  The  Industrial  Commission.  —  In  a  measure,  this 
commission  of  nineteen  members  has  a  task  similar  to  that 


The  Executive  Departments  313 

given  the  Department  of  Labor,  though  in  a  less  limited  North,  in 

field.     It  was  created  in  1898  for  the  purpose  of  study-  fi^f''^ 

ing  the  condition  of  labor,  manufacturing,  and  agriculture  719. 

throughout  the  United  States,  and  of  reporting  to  Congress 

and  suggesting  to  the  state  legislatures  some  laws  that  would 

tend  to  improve  and  make  uniform  the  legislation  relating 

to  all  forms  of  industry.     Were  the  supervision  of  most 

corporations  transferred  from  the  state  governments  to  that 

of  the  nation,  a  Department  of  Labor  and  Industry  would 

be  a  prime  necessity,  and  would  rank  second  to  few  if  any 

of  the  other  executive  departments. 

373.  Other  Commissions.  —  The    Interstate    Commerce  interstate 
Commission  was  created   in  accordance  with  the  law  of  ^°"""f" 

Commission. 

1887,   and  consists  of  five  members.      It  holds  sessions 

and  hears  complaints  of   persons  who  believe  they  have  ^^-  ^  ^^3- 

been    compelled   to   pay   excessive    rates   to   companies 

operating  in  more  than  one  state.     The  commission  has 

authority  to  declare  charges  unjust,  but  has  no  power  to 

fix  rates. 

The  three  members  of  the  Civil  Service  Commission  Civil  Service 
make  rules  for  holding  examinations  of  persons  wishing  to  ^°™^'ss'°"- 
enter  the  "  classified "  service  of  the  United  States,  and  296-298. 
select  the  ones  to  fill  vacancies. 

The  Commission  of  Fish  and  Fisheries  seeks  to  increase   Fish  Com- 
the  numbers  of  desirable  fishes  in  different  parts  of  the 
United  States. 

QUESTIONS  AND   REFERENCES 
The  Depjurtment  of  State  (§§  352-356) 

a.  Defects  of  our  foreign  service,  Rockhill,  W.  W.,  in  Forum, 
XXII  (1898),  673-683;  White,  S.  M.,  in  Forum,  XXV  (1898), 
546-554;  Washburn,  A.  H.,  in  Ai.  Mo.,  LXXIV  (1894),  241-252; 
Parker,  G.  F.,  in  At.  Mo.,  LXXXV  (1900),  455-466. 

b.  Reform  of  the  service,  some  of  above,  and  Wharton,  W.  F., 
in  N.  A.  R.,  159  (1894),  412-422;  White,  H.,  in  A''.  A.  /*.,  159 
(1894),  711  et  seq.;  Parker,  G.  F.,  in  At.  Mo.,  LXXXV  (1900), 
669-683. 


mission. 


314  The  American  Federal  State 

I.  If  a  Department  of  Commerce  were  created,  what  would  be  some 
of  the  duties  assigned  to  it,  and  what  bureaus,  divisions,  etc.,  now  be- 
longing to  other  departments  should  be  incorporated  with  it  ? 

i.  When  was  each  department  created  ?  Who  is  now  in  charge  of 
each  ?  Give  some  account  of  the  public  services  of  the  present  secretaries. 

ii.  Name  the  ambassadors  of  the  United  States  to  the  chief  powers, 
and  of  those  powers  to  the  United  States.  Which  of  these  men  have 
won  distinction,  and  for  what  ? 

iii.  What  is  the  pay  of  our  minister  to  France  ?  our  consul  at 
Liverpool  ?  How  does  their  pay  compare  with  that  of  similar  officials 
representing  other  governments  ? 

iv.  What  does  it  signify  when  a  minister  is  given  his  passports? 
When  he  demands  them  ?  How  would  you  get  a  passport  if  you 
wished  to  travel  in  Europe  ?    Of  what  value  would  it  be  ? 

The  Post-office  (§§  357-359) 

1.  Would  a  strict  individualist  (§  27)  believe  it  right  for  the  gov- 
ernment to  conduct  a  post-office  ?  Would  you  consider  it  desirable 
to  leave  the  postal  business  to  private  corporations  ?  Should  the  post- 
office  be  run  less  for  the  purpose  of  "  developing "  the  people  and 
more  in  accordance  with  business  methods  ? 

2.  If  the  post-office  is  conducted  by  the  -government,  why  should 
not  the  telegraph  lines  and  railways  be  managed  by  it  also  ?  Is  there 
any  essential  difference  between  these  kinds  of  businesses  that  make  it 
more  desirable  in  one  case  than  in  the  others  ?  Give  advantages  and 
disadvantages  of  government  control  of  the  telegraph. 

i.  How  many  Assistant  Postmasters-general  are  there  ?  What  is 
the  work  of  the  dead-letter  office  ?  What  two  kinds  of  money  orders 
are  issued  ?     (Cong.  Dir,) 

ii.  What  rates  are  charged  for  each  class  of  mail  matter  ?  What 
would  it  cost  to  send  a  one-ounce  letter  to  Montreal  ?  to  Berlin  ? 
(Pol.  Als.) 

iii.  Under  what  class  does  each  of  the  following  come :  a  photo- 
graph ?  a  handkerchief?  manuscript  of  a  poem  ?  books  in  series  pub- 
lished monthly  ?  hectograph  circulars  ?  a  package  of  seeds  ?  (Pol. 
Als.) 

The  Interior  Department  (§§  360-365) 

a.  On  our  land  policy,  look  up  Ford,  W,  C,  in  Lalor,  III,  460- 
479 ;  Sato,  S.,  in  /.  H.  U.  S,  IV,  vii-bc ;  and  Donaldson,  Public  Do- 
main, 146  et  seq. 


The  Executive  Departments  315 

1.  Study  the  history  of  the  public  lands  devoted  to  education  in  the 
separate  states.  What  ones  have  been  especially  wise  in  the  adminis- 
tration of  funds  ?     What  ones  particularly  improvident  ? 

2.  State  in  detail  what  is  being  done  by  the  government  for  the  ele- 
vation of  the  Indian. 

3.  Give  an  account  of  the  relations  of  the  United  States  govern- 
ment to  the  Pacific  railways  from  i860  to  the  present. 

i.  Do  you  live  on  land  surveyed  according  to  the  "  rectangular " 
system  ?  If  so,  where  are  the  nearest  base  line  and  prime  meridian  ? 
In  what  range  and  township  do  you  reside  ?     In  what  section  ? 

ii.  What  is  the  smallest  monthly  amount  given  to  any  veteran  by 
the  government  in  the  form  of  a  pension  ?  How  many  pensioners  are 
on  the  list  at  present  ?    What  sum  is  annually  appropriated  for  them? 

iii.   Look  up  the  steps  in  obtaining  a  patent  or  a  copyright. 

Other  Departments  (§§  366-373) 

a.  Compare  our  departments  as  departments  and  heads  as  a  Cabi- 
net with  those  of  Europe.  Wilson,  The  State,  §§  419-430,  436-438 
(Fr.),  543-556  (Ger.),  858-889  (Eng.);  and  Goodnow,  Comparative 
Administrative  Law,  I,  102-161  (on  all). 

b.  Complete  lists  of  all  cabinet  officials  may  be  found  in  Johnston's 
American  Politics,  Appendix;  of  all  ministers  abroad  and  consuls  at 
present,  in  Congressional  Directory.  The  World  and  some  other  al- 
manacs include  lists  of  all  or  most  of  these  personages. 

1.  Is  our  method  of  appointment  in  the  army  and  in  the  navy  bet- 
ter than  that  employed  in  selecting  men  for  other  parts  of  the  excepted 
or  unclassified  branches  of  the  civil  service  ?  If  so,  why  ?  If  you  think 
not,  give  your  reasons. 

2.  Which  executive  departments  and  commissions  execute  and  ad- 
minister the  laws  ?  Which  ones  are  restricted  to  making  reports  and 
suggestions  on  subjects  over  which  Congress  has  no  jurisdiction  ? 

i.  What  Secretaries  of  the  Treasury  have  had  a  national  and  lasting 
reputation  ?     (Pol.  Als.) 

ii.  Who  has  charge  of  the  erection  of  public  buildings?  Of  the  con- 
struction of  harbor  improvements  ?  Of  printing  the  records  of  Con- 
gress ?    Of  the  samples  of  copyrighted  books?     (Cong.  Dir.) 

iii.  How  does  the  weather  bureau  gain  the  information  it  needs  in 
the  formulation  of  its  reports  ?     How  are  these  reports  made  up  ? 

iv.  What  classes  of  officials  and  clerks  are  in  the  classified  list  of 
the  civil  service  ?  the  excepted  list  ?  the  unclassified  list  ?  (Cong. 
Dir.) 


CHAPTER   XVI 

THE  JUDICIAL  DEPARTMENT 

General  References 

Hinsdale,  American  Government,  292-322. 
Bryce,  American  Commonwealth  (abd,  ed.),  1 67-200. 
Harrison,  This  Country  of  Ours,  300-330. 
Burgess,  Political  Science,  II,  320-337. 
Cooley,  Principles  0/  Constitutional  Law,  I11-148. 
Story,  Commentaries,  chaps.  IV,  V,  XXXVIII. 
Cooley  et  al..  Constitutional  History  as  seen  in  Constitutional  Law. 
Willoughby,  The  Supreme  Court. 

Coxe,  Judicial  Powers  and  Unconstitutional  Legislation. 
The  Federalist,  Nos.  LXXVIII-LXXXIII. 
Meigs,  Growth  of  the  Constitution,  234-254. 
Lalor's  Cyclopedia,  article,  "  Judiciary." 

British  and  American  Encyclopedia  of  Law,  article,  "  United  States 
Courts." 


Final  inter- 
preter of  a 
written 
constitution 
in  a  federal 
state. 

Bryce,  a6o- 
262. 

Story,  Com- 
memories, 
§§  373-396. 

Cooley, 
Consfl  Hist., 
30-43- 


374.  The  Position  of  the  National  Courts  in  our  Consti- 
tutional System.  — Our  national  judiciary  has  enjoyed  an 
experience  unique  in  the  history  of  judicial  institutions. 
This  has  been  in  no  wise  due  to  a  peculiar  organization  or 
unusual  methods,  but  solely  to  the  character  of  the  Federal 
State  in  which  we  live  and  to  the  limitations  of  a  written 
constitution.  In  organizing  our  present  system  of  govern- 
ment, a  line  was  drawn  between  the  sphere  of  the  nation 
and  the  sphere  of  the  states,  and  the  powers  to  be  exer- 
cised by  the  United  States  were  delegated  in  general  terms 
and  enumerated  in  the  Constitution.  Because  the  exact 
character  of  these  powers  was  not  specified,  it  became  a 
matter  of  the  first  importance  to  decide  who  should  be  the 
final  interpreter  of  what  powers  had  been  given  and  what 

316 


The  Judicial  Department  317 

ones  withheld.  The  convention  of  1787  was  unwilling  to 
have  the  United  States  government  dependent  upon  the 
states  for  the  exercise  of  any  of  its  powers,  because  of  the 
experience  which  Congress  had  had  under  the  Confedera- 
tion. Much  less  were  they  willing  to  give  the  states  the 
right  to  decide  what  the  provisions  of  the  Constitution 
meant,  as  that  would  enable  the  states  to  restrict  the  powers 
of  the  central  government  at  will,  and  thus  place  Congress 
again  at  their  mercy.  Accordingly,  the  convention  felt  it 
necessary  to  make  the  United  States  government  the  inter- 
preter of  its  own  powers,  and  to  the  Supreme  Court  was 
given  the  right  to  decide  what  the  Constitution  meant. 
The  anti-Federalists  protested  vigorously  against  such  a 
usurpation  of  authority  by  the  central  government,  as  it 
left  no  sufficient  guarantee  that  the  states  would  be  allowed 
to  use  all  the  powers  reserved  to  them.  These  protests 
found  embodiment  in  the  tenth  amendment,  which  declared 
that  all  powers  not  delegated  to  the  United  States  or 
denied  the  states  were  reserved  to  the  states  or  the  people 
thereof.  But  this  did  not  affect  the  position  of  the 
Supreme  Court  as  the  final  interpreter  of  the  Constitution. 

375.  Declaring  Laws  Unconstitutional.  —  In  The  Federalist  when  and 

(No.  LXXXI)  Hamilton  has  shown  that  where  a  less  impor-  ^°*  *^!* 
^  '  *^  power  IS 

tant  law  conflicts  with  a  more  important  one,  the  former  used. 

is  set  aside  as  invalid.     As  the  Constitution  is  the  funda-  g        ^  -_ 
mental  law  of  the  land,  and  as  laws  of  Congress  have  less  181, 183-187. 
authority  in  case  of  supposed  conflict,    the  courts  must  Hinsdale, 
decide  whether  the  two  are  incompatible,  and,  if  so,  declare  \h  570-577- 
the  law  of  Congress  null  and  void.    In  the  same  way,  since 
the  Constitution,  the  laws  of  Congress  and  treaties  are  the 
supreme  law  of  the  land,  when  a  state  law  is  in  opposi- 
tion to  a  national  law,  the  court  must  first  decide  whether 
Congress  had  a  right  to  pass  its  law,  and  if  it  had,  the  state 
law  is  declared  unconstitutional.    .But  the  courts  wield  this 
immense  power  purely  and  simply  as  courts,  i.e.  they  do 
not  pass  judgment  on  any  laws  at  the  time  those  are  enacted, 
but  wait  till  some  one  is  aggrieved  in  the  execution  of  the 


3i8 


The  American  Federal  State 


Before  1790. 

Bundy,  Sepa- 
ration of 
Gov't 
Powers, 
52-62. 


Since  1790. 

Johnston,  in 
Lalor.  II, 
647-65X 

Elliott,  C.  B., 
in  P.  S.  Q., 
V  (1890). 
224-258. 

Cf.  ^  I4S, 
168,  221,  404. 


law  and  brings  suit  in  order  to  protect  alleged  rights.  The 
courts  do  no  more  than  decide  whether  the  law  does  con- 
travene the  Constitution,  and  if,  in  their  opinion,  it  does, 
they  bring  in  a  verdict  for  the  plaintiff.  But  as  they  have 
declared  the  law  unconstitutional  in  this  one  case,  it  has 
become  the  custom  for  the  other  departments  of  govern- 
ment and  for  the  people  to  consider  the  law  of  no  effect, 
as  though  it  had  never  existed.  Then,  if  the  decision  of  the 
court  is  unfavorable  to  the  highest  tribunal  of  the  land, 
i.e.  the  people,  in  time  the  ruling  of  the  court  will  be  set 
aside  and  a  law  similar  to  the  first  one  will  be  considered 
constitutional. 

376.  Historical  Use  of  the  Power  to  set  aside  Laws.  —  In 
no  other  country  has  the  judiciary  ever  been  allowed  to 
override  the  wishes  of  the  legislative  body  by  declaring  a 
law  null  and  void.  Consequently,  no  other  national  courts 
can  compare  with  ours  in  prestige  or  power.  But  the  idea 
of  setting  aside  a  law  did  not  originate  with  our  Supreme 
Court.  In  colonial  times  we  have  the  germ  of  the  idea  in 
the  right  exercised  by  the  "  Lords  of  Trade  "  to  declare 
null  and  void  a  law  of  a  colony  which  they  thought  was 
contrary  either  to  the  charter  of  the  colony  or  to  the  laws 
of  England.  No  less  than  three  times  between  1776  and 
1787  did  the  state  courts  assert  their  right  to  decide  whether 
a  law  was  in  opposition  to  the  state  constitution;  and  in 
the  well-known  case  of  Trevett  v.  Weeden  (1786)  the  Rhode 
Island  judges  not  only  declared  a  law  unconstitutional,  but 
sought,  though  unsuccessfully,  to  enforce  their  decision. 

The  Supreme  Court  did  not  hesitate  to  exercise  this 
power  early  in  its  career;  but  as  most  of  the  cases  were  of 
minor  importance,  comparatively  little  attention  was  paid 
to  them,  even  though  the  strict  constructionists  were  of  one 
mind  that  the  courts  were  exceeding  their  powers.  The 
Virginia  and  Kentucky  resolutions  of  1798  and  1799,  claim- 
ing the  right  of  three-fourths  of  the  states  to  declare  a  law 
of  Congress  unconstitutional,  stirred  up  popular  interest  in 
the  question,  and  made  it  necessary  for  the  courts  to  prove 


The  Judicial  Department  319 

beyond  all  question  that  they  had  this  right  to  set  aside  laws. 
In  this  consists  the  significance  of  Chief  Justice  Marshall's 
reasoning  in  Marbury  v.  Madison  (1803),  (§  145).  From 
that  time  no  large  proportion  of  the  people  has  denied  to 
the  Supreme  Court  the  position  of  final  interpreter  of  the 
Constitution.  But  it  yet  remained  to  assert  the  supremacy 
of  national  over  state  laws  through  judicial  decisions,  and 
this  was  done  repeatedly  between  1810  and  1830.  There 
have  been,  of  course,  objectors  in  the  states  and  in  the 
other  national  departments;  but  it  is  now  universally  ad- 
mitted that  the  Supreme  Court  decisions  bind  all  other 
government  officials  and  all  citizens  so  far  as  they  apply 
to  civil  rights  and  legal  remedies,  and  not  to  political 
policies ;  unless  they  are  overruled  by  the  people. 

377.  Some  Rules  of  Judicial  Interpretation.  —  In  deciding  Cooiey. 

whether  a  law  is  adverse  to  the  Constitution,  the  courts  are   ^""^'Z  ^''"'• 

151-162. 
accustomed  to  observe  certain  rules  and  customs.     Among 

these  may  be  mentioned:  (i)  No  important  case  involving  J,^t'arieT' 
the  Constitution  is  considered  except  by  a  full  court.  §$  399-456. 
(2)  No  law  is  declared  unconstitutional  unless  it  is  clearly 
in  opposition  to  the  Constitution.  (3)  To  find  the  mean- 
ing of  a  particular  clause,  the  meaning  of  the  Constitution 
as  a  whole  is  usually  taken  into  consideration.  (4)  Laws 
which  violate  general  principles  of  liberty  are  not  on  that 
account  declared  null  and  void,  (5)  Statutes  may  be  held 
to  be  unconstitutional  in  part,  the  validity  of  the  remainder 
being  affirmed. 

378.  The  System  of  Courts. — The  Constitution  provides  judiciary 

that  there  shall  be  a  Supreme  Court  and  such  inferior  courts  ^^^f  °^  ^^89 

and  1891. 
as  Congress  may  think  it  best  to  establish.    In  the  Judiciary 

Act  of  1789  arrangements  were  made  for  districts  corre-  {/c^cm 
sponding  to  a  state  or  a  portion  of  a  state,  and  circuits  538-546. 
composed  of  several  districts.  Judges  were  appointed  for 
the  Supreme  Court  and  the  district  courts,  but  no  special 
circuit  judgeships  were  created.  The  jurisdiction  of  each 
set  of  courts  was  defined,  and  the  cases  that  could  be  ap- 
pealed from  the  lower  courts,  or  state  courts,  were  enumer- 


320 


The  American  Federal  State 


Life  tenure. 

Hinsdale, 
kh  530.  531- 


Classes  of 
cases. 

Burgess,  Pol. 
Science,  II, 
325-328. 


ated.  This  system,  with  necessary  changes,  lasted  for  one 
hundred  years,  till  the  Act  of  189 1  created  the  Circuit  Court 
of  Appeals,  in  order  to  relieve  the  Supreme  Court  of  a  large 
part  of  the  cases  formerly  appealed  to  it.  We  have  now 
(1901),  therefore,  the  lowest  courts  for  seventy  state  and 
nine  territorial  districts;  above  these  nine  circuit  courts 
and  nine  circuit  courts  of  appeals,  and,  finally,  the  Supreme 
Court.  The  court  of  claims  stands  outside  of  this  system, 
and  the  courts  of  the  territories  are  organized  on  plans 
entirely  different  from  the  national  courts. 

379.  Term  and  Appointment  of  Judges. — The  term  of 
all  United  States  judges  is  for  good  behavior.  They  are 
appointed  by  the  President,  and  must  be  confirmed  by  the 
Senate  before  taking  office.  They  hold,  practically,  life 
positions,  as  impeachment  is  the  only  method  of  removal, 
and  this  is  too  cumbersome  for  ordinary  use.  They  may 
retire  at  the  age  of  seventy,  provided  they  have  served  at 
least  ten  years,  and  continue  to  draw  full  pay.  The  sala- 
ries at  the  present  time  are  1^5000  a  year  for  district 
judges,  $6000  for  circuit  and  appeal  judges,  and  $10,000 
for  Supreme  Court  justices,  with  $10,500  for  the  chief 
justice.  These  salaries  may  be  increased,  but  cannot  be 
diminished  during  the  term  of  office.  Life  tenure  of  the 
judges  violates  one  of  the  fundamental  principles  of  de- 
mocracy, but  it  has  undoubtedly  given  us  courts  of  higher 
character  than  would  otherwise  have  been  possible.  The 
judges  have  been  men  that  have  ranked  high  in  the  legal 
profession,  and  the  permanency  of  tenure  has  led  to  fewer 
shiftings  of  position  than  would  have  been  the  case  with 
short  terms.  Even  when  men  who  are  pronounced  poli- 
ticians have  been  selected  for  the  bench,  they  have,  almost 
without  exception,  subordinated  partisanship  to  a  love  of 
justice. 

380.  Jurisdiction  of  the  National  Courts.  — The  Constitu- 
tion provides  for  the  different  kinds  of  cases  that  may  be 
tried  in  United  States  courts.  These  include  all  cases  that 
could  not  be  properly  decided  by  state  tribunals.     They 


The  Judicial  Department  32 1 

may  be  arranged  in  two  great  classes:  (i)  Those  depend-  Cooiey, 
ingon  the  nature  of  the  suit  itself;  (2)  those  depending  on  '^'  "'' 
the  character  of  the  parties  to  the  suit.  Under  class  one 
come  "all  cases  in  law  and  equity  arising  under  this  Con- 
stitution, the  laws  of  the  United  States,  and  treaties  made 
or  which  shall  be  made  under  their  authority,"  and  "all 
cases  of  admiralty  or  maritime  jurisdiction."  Under  the 
second  class  are :  (i)  "  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls;"  (2)  "to  controversies  to 
which  the  United  States  shall  be  a  party;  [3]  to  contro- 
versies between  two  or  more  states,  between  a  state  and  citi- 
zens of  another  state,"  but  no  state  shall  be  sued  without 
its  own  consent;  (4)  "between  citizens  of  different  states, 
between  citizens  of  the  same  state  claiming  land  under 
grants  of  different  states;  and  [5]  between  a  state  or  the 
citizens  thereof  and  foreign  states,  citizens,  or  subjects." 

381.  Methods  and  Jurisdiction;   Historical. — The   plan  Aiinon-judi- 
proposed  by  Virginia  to    the  constitutional  convention  ^'^'  duties 

avoided  by 

made  the  highest  national  court  an  advisory  body  for  the  the  courts. 

executive;  but,  before  the  sessions  closed,  the  courts  were   Harrson 

limited  to  judicial  matters  tried   according  to  judicial  This  Country 

methods.      Nevertheless,  the   judges  were  given  several  "f^^^- 

303~3^3' 
opportunities  to  perform  many  non-judicial   duties.     In 

1 79 1  the  judges  of  the  circuit  court  were  asked  to  investi- 
gate and  decide  the  claims  of  certain  persons  for  pensions. 
All  of  the  judges  agreed  that  they  had  no  judicial  power  to 
do  this,  and  while  some  were  willing  to  undertake  the  task 
as  commissioners,  so  strong  was  the  feeling  of  the  judiciary 
against  such  a  course  that  other  provisions  were  made  for 
the  consideration  of  the  claims.  Not  long  after  (1793) 
Washington  sent  to  the  Supreme  Court  a  list  of  subjects 
upon  which  he  asked  the  court  to  express  opinions.  They 
were  at  once  returned  as  being  outside  the  jurisdiction  of 
that  body.  But  the  court  has  been  just  as  conservative  in 
deciding  cases  brought  before  it  as  in  thus  delimiting  its 
field  of  activity.  When  the  case  has  involved  points  deal- 
ing with  the  policies  of  either  the  executive  or  legislative 


322 


The  American  Federal  State 


Concurrent 
jurisdiction. 
Cases  that 
may  be  ap- 
pealed. 

Cooley, 
Const' I  Law, 
127-133. 

Cooley, 
Consfl  Limi- 
tations, 
18-23. 


departments,  the  courts  have  always  refused  to  consider 
it  or  to  interfere  in  any  way  with  political  questions. 
E.g.  Congress  and  not  the  court  decide  when  insurrections 
exist.  Congress  uses  its  own  discretion  in  performing  its 
duties,  provided  it  does  not  exceed  its  constitutional  powers. 
The  judiciary  has  therefore  confined  itself  to  legal  matters 
and  cases  involving  individual  rights.  In  addition,  it  has 
refused  to  allow  Congress  to  enlarge  the  original  jurisdic- 
tion of  the  Supreme  Court  or  the  jurisdiction  of  the  national 
judiciary  as  a  whole;  it  has  permitted  state  courts  to  exer- 
cise extensive  concurrent  jurisdiction  with  the  United  States 
courts,  and  has  in  every  way  acted  with  discretion  and 
judgment. 

382.  Relation  to  State  Courts.  —  In  general  the  United 
States  or  the  state  courts  have  exclusive  jurisdiction  over 
certain  classes  of  cases,  but  there  may  be  instances  of  con- 
current jurisdiction.  For  example,  a  case  coming  under 
the  postal  laws  or  under  a  state  law  supposed  to  involve  the 
United  States  Constitution  may  be  tried  in  either  a  state 
or  a  United  States  court,  as  the  plaintiff  prefers.  In  such 
cases  the  final  decision  rests  with  the  national  court.  When, 
in  a  case  arising  under  a  state  law,  the  state  court  decides 
that  the  law  is  repugnant  to  the  United  States  Constitution, 
it  is  not  appealed  to  the  United  States  courts;  but  if  the 
state  court  decides  that  it  is  not  repugnant  to  the  national 
Constitution,  the  case  must  be  carried  to  the  Supreme 
Court  of  the  United  States.  Again,  when  a  state  court 
decides  in  favor  of  any  "right,  title,  authority,  privilege, 
protection,  or  exemption "  granted  by  the  United  States 
government,  the  decision  is  final,  but  the  case  may  be 
appealed  to  the  Supreme  Court  if  the  decision  is  adverse. 
In  cases  tried  by  the  national  courts  which  involve  points 
of  state  or  of  the  common  law,  the  attempt  has  been  made 
to  follow  the  rulings  of  the  highest  state  tribunals;  but  this 
has  been  only  partially  successful,  as  the  national  courts 
have  felt  it  more  necessary  to  be  consistent  with  each  other 
than  with  state  courts. 


The  Judicial  Department 


323 


383.  The  Supreme  Court ;  Organization.  —  The  Supreme 
Court  consists  of  one  chief  justice  and  eight  associate  jus- 
tices, appointed  by  the  President  for  life.  The  court  holds 
its  regular  session  in  Washington,  beginning  in  October,  and 
the  presence  of  six  justices  is  necessary  before  a  decision 
is  rendered.  These  decisions  are  written  by  the  different 
judges  to  whom  particular  cases  are  assigned  by  the  chief 
justice  after  discussion  by  the  different  members  of  the  court. 
The  opinion  is  then  read  in  the  presence  of  the  others,  a 
vote  is  taken,  and,  if  accepted  by  the  majority,  it  becomes 
the  decision  of  the  court.  Dissenting  opinions  are  often 
given  by  the  minority  in  suits  involving  important  principles. 

Each  justice  of  the  Supreme  Court  is  also  assigned  to  a 
particular  circuit,  in  which  he  is  obliged  by  law  to  hold 
court  at  least  once  in  two  years.  He  is  likely  to  be  called 
upon  for  service  in  the  Circuit  Court  of  Appeals  in  his 
circuit,  so  his  position  is  no  sinecure. 

Until  1807  the  court  had  but  five  associate  justices.  From  1807  to 
1837  the  number  was  six  ;  after  1837,  eight.  In  1863  it  was  increased 
to  nine  ;  but  in  1 866,  in  order  to  prevent  President  Johnson  from  mak- 
ing appointments,  it  was  practically  reduced  to  six.  Since  1869  there 
have  been  eight  associates  of  the  chief  justice. 

In  1901  the  court  was  composed  as  follows:  — 


Composi- 
tions, ses- 
sions, and 
decisions. 

Harrison, 

ibid., 
314-330- 


Circtut  Court 
duties. 


Number 
(1789-1900). 


Circuit 

Appointbd 

Chief  Justice  Melville  W.  Fuller  (111.) 

Fourth 

1888 

Associate  Justice  John  M.  Harlan  (Ky.)  .... 

Sixth 

1877 

Associate  Justice  Horace  Gray  (Mass.) 

First 

I88I 

Associate  Justice  David  J.  Brewer  (Kan.)  .  .  . 

Eighth 

1889 

Associate  Justice  Henry  B.  Brown  (Mich.)  .  .  . 

Seventh 

1890 

Associate  Justice  George  Shiras,  Jr.  (Pa.)  .... 

Third 

1892 

Associate  Justice  Edward  D.  White  (La.)  .  .  . 

Fifth 

1894 

Associate  Justice  Rufus  W.  Peckham  (N.  Y.).  . 

Second 

1895 

Associate  Justice  Joseph  McKenna  (Cal.)  .... 

Ninth 

1898 

384.  Jurisdiction 
Court  is  of  two  kinds. 


The    jurisdiction  of   the  Supreme  apt^nate*" 
original  and  appellate.     Those  jurisdiction. 


324 


The  American  Federal  State 


Brit,  and 
Amer. 
Encyc.  of 
Z^w.  XXVII. 
638-644. 


Organization 
and  jurisdic- 
tion. 

B.  and  A. 
Encyc.  of 
Law,Y.YM\\, 
645-649. 


kinds  of  cases  that  shall  be  tried  first  in  this  court  are 
specified  in  the  Constitution;  but  the  court  itself  has  de- 
cided that  as  this  jurisdiction  is  not  exclusive,  Congress 
may  permit  other  courts  to  exercise  it.  The  cases  are  those 
"affecting  ambassadors,  other  public  ministers,  and  consuls, 
and  those  in  which  a  state  shall  be  a  party."  The  appellate 
jurisdiction  of  the  court  may  extend  to  all  other  cases,  but 
to  do  this  would  lead  to  a  needless  increase  of  its  business. 
Cases  which  are  now  appealed  may  be  divided  into  three 
classes,  according  to  the  courts  from  which  appealed: 
(i)  Cases  from  either  the  district  or  circuit  courts  are  those 
in  which  the  jurisdiction  of  the  court  is  in  question,  final 
sentences  or  decrees  in  prize  causes,  cases  of  conviction 
for  capital  crimes,  those  involving  the  Constitution  of  the 
United  States  or  constitutionality  of  any  law,  and  cases 
where  a  state  law  is  said  to  be  in  contravention  of  the 
United  States  Constitution.  (2)  The  decisions  of  the  Cir- 
cuit Court  of  Appeals  may  be  reviewed  where  the  case  in- 
volves $1000 —  except  cases  between  citizens  of  different 
states  or  a  citizen  and  an  alien — cases  under  patent  revenue 
and  criminal  laws,  and  cases  in  admiralty.  (3)  All  cases 
tried  in  state  courts  which  may  be  appealed,  as  we  have  just 
seen  (§  382),  are  carried  directly  to  the  Supreme  Court. 

385.  Circuit  Court  of  Appeals.  — The  Act  of  1891  created 
this  court  for  the  purpose  of  relieving  the  Supreme  Court 
of  most  of  its  appellate  business.  There  are  as  many  courts 
as  there  are  circuits,  that  is,  nine,  and  each  is  composed 
of  three  persons,  the  Supreme  Court  justice  of  that  circuit 
and  two  of  the  regular  circuit  judges,  or  possibly  district 
judges.  Any  two  of  these  may  hold  court  at  any  time,  but 
the  places  are  designated  by  law.  All  cases  appealed  from 
the  district  or  circuit  courts,  and  not  taken  directly  to  the 
Supreme  Court,  are  reviewed  in  this  court.  The  decision 
of  the  court  is  final  in  some  of  these  cases,  as  in  those  in- 
volving criminal,  admiralty,  revenue,  and  patent  law,  but 
in  all  others  the  case  may  be  carried  to  the  Supreme  Court, 
either  by  appeal  or  on  writ  of  error. 


The  Judicial  Department  325 

There  has  already  been  some  complaint  that  different  A  defect, 
suits  involving  similar  principles,  which  cannot  be  carried 
higher,  may  be  decided  in  one  way  by  one  Circuit  Court 
of  Appeals  and  in  another  way  by  another,  so  that  what  is 
legal  in  one  circuit  is  illegal  in  a  second.  To  remedy  this 
difficulty  a  single  court  has  been  suggested  to  which  appeal 
may  be  taken  in  such  cases. 

386.  Circuit  Courts.  —  For   each  of   the  nine  circuits  Composi- 
either  two  or  three  circuit  judges  are  appointed  who  may  *^°"-.   9"^" 
hold  court  separately  or  together.     Before  1891  the  court  tion. 
possessed  both  original  and  appellate  jurisdiction,  but  by  ^  ^^^^ 
the  judiciary  law  of  that  year,  when  the  whole  system  was  Encyc.  of 
reorganized,  only  original  jurisdiction  was  left.    It  may  be  ^T^^^^^^' 
said  that  all  cases  involving  ^2000  or  more,  coming  under 

any  one  of  the  classes  specified  in  Article  III,  Section  2, 
cl.  I,  of  the  Constitution  are  tried  in  this  court,  but  may 
be  appealed  to  one  or  the  other  of  the  higher  courts. 

387.  District  Courts.  —  There  are  now  seventy-nine  dis-  District 
tricts  in  the  United  States,  nine  of  which  are  in  the  terri-  Judges  and 

,     ,  ,  ,  ...  .  officers. 

tones;  and  there  are  for  the   state  districts  sixty-seven 
district  judges,  as  three  of  the  judges  have  two  districts  £^^  ^: 
apiece.     To  each  district  is  also  assigned  a  district  attor-  zaw.xxvii, 
ney,  who  represents  the  United  States  in  all  suits  arising  ^59~664' 
in  the  United  States  courts  held  in  his  district,  and  a  mar- 
shal, who  executes  the  decision  of  the  court  and  who  may 
call  out  a  posse  or  ask  aid  from  the  President  in  the  per- 
formance of  his  duties.     The  jurisdiction  of  the  court  is 
original,  and  covers  a  multitude  of  cases  from  those  of 
minor  importance  to  the  fina!  decision  of  prize  causes. 

388.  Court  of  Claims. — The  court  of  claims  was  organ-  Task  of  the 
ized,  in  1855,  for  the  purpose  of  deciding  the  amount  due   '^^"'^ 
any  persons  who  had  a  claim  of  any  kind  against  the  national  B.  and  A. 
government.     It  is  composed  of  five  judges,  with  a  salary  ^^xxvil 
of  ;?45oo  each,  and  holds  its  sessions  at  Washington,  trying  664-^1. 
suits  brought  by  individuals  for  money  supposed  to  be  due 

them  by  the  United  States.  The  court  decides  on  the  jus- 
tice of  the  claim  and  the  amount  the  plaintiff  is  to  receive. 


326  The  American  Federal  State 

QUESTIONS  AND  REFERENCES 

The  Position  of  the  Courts  (§§  374-377) 

a.  On  courts,  consult  Burgess,  Comparative  Constitutional  Law,  II, 
320-337  (U.  S.),  33^346  (Eng.).  347-35»  (Ger.),  352-355  (Fr.)  35^ 
366  (all). 

1.  How  do  our  courts  compare  with  those  of  England,  France,  and 
Germany  in  organization,  methods,  and  jurisdiction  ? 

2.  If  the  Supreme  Court  can  set  aside  a  law  of  Congress,  is  not  the 
court  above  Congress  ?  Which  has  the  greater  positive  power  ?  the 
greater  negative  power  ? 

i.  Look  up  in  Thayer's  Cases  in  Constitutional  Law  the  o.iCi:,iOns 
on  some  of  the  important  laws  declared  unconstitutional.  Were  any  of 
the  decisions  unanimous?    Which  ones  were  decided  by  a  bare  majority? 

ii.  Name  a  recent  case  in  which  a  law  of  Congress  was  held  invalid. 
On  what  grounds  ?     By  what  members  of  the  court  ? 

The  Coxirts  as  a  Whole  (§§  378-382) 

1.  In  what  respects  may  our  system  of  courts  be  altered  without  a 
constitutional  amendment  ?  Is  the  number  of  Supreme  Court  justices 
dependent  on  statute  or  constitutional  law  ? 

2.  Why  would  a  ten  or  fifteen  year  term  be  undesirable  ? 

3.  Why  does  not  the  eleventh  amendment  prohibit  citizens  from 
suing  their  own  state  ? 

The  Supreme  and  Inferior  Courts  (§§  383-388) 

a.  See  Congressional  Directory  for  biographies  of  Supreme  Court 
justices  and  some  other  facts.  For  fuller  lists  of  judges,  attorneys, 
marshals,  etc.,  consult  Political  Almanacs. 

i.  Name  the  most  important  chief  justices  we  have  had.  Who  is 
Supreme  Court  justice  for  your  circuit  ?  Who  are  the  other  judges 
holding  court  in  that  circuit  ? 

ii.  What  are  the  limits  of  your  district  ?  Where  is  the  court  held  ? 
Give  the  names  of  the  district  judge,  the  district  attorney,  the  marshaL 
How  do  the  judges  (U.  S.)  of  your  locality  compare  in  ability  with  the 
state  judges  ? 

iii.  What  Supreme  Court  justices  are  Democrats  ?  which  ones  are 
Republicans  ?  By  whom  was  e?.ch  appointed  ?  What  experience  did 
each  have  in  the  territory  over  which  he  now  holds  circuit  court  ? 


CHAPTER  XVII 

THE  RELATIONS  OF  THE  DEPARTMENTS 
Q«neral  References 

Bryce,  The  American  Commonwealth  (abd.  ed.),  155-167,  192-200. 

Wilson,  Congressional  Government, 

McConachie,  Congressional  Committees,  211-258.  Shows  how  the 
committees  form  bonds  between  the  departments. 

Cooky,  Constitutional  Law. 

Bundy,  The  Separation  of  Governmental  Powers.  The  most  complete 
study  of  the  subject;   includes  the  state  governments. 

Bagehot,  The  English  Constitution.  A  brilliant  and  forceful  presenta- 
tion of  its  actual  workings,  chap.  H  especially  valuable. 

Davis,  H.,  on  "General  Relations,"  in/.  H.  U.  S.,  Ill,  482-523. 

Mason,  The  Veto  Power.  Vetoes  treating  relations  of  the  depart- 
ments. 

Goodnow,  "  The  Executive  and  the  Courts "  (/*.  S.  Q.,  I,  533-559). 
Judicial  remedies  for  administrative  actions  which  restrict  indi- 
vidual liberty. 

Elliot,  "The  Legislature  and  the  Courts"  (/*.  S.  Q.,  V). 

Willoughby,  The  Supreme  Court.  Relations  to  Congress  and  the 
executive  and  influence  on  politics  considered. 

Qox^,  Judicial  Powers  and  Unconstitutional  Legislation. 

Lalor's  Cyclopedia,  article  by  Johnston  on  "  Relation  of  President  to 
Congress  and  Judiciary,"  and  01"  Veto." 

389.  The  Two  Demands  upon  a  Governmental  Organization.  Separate 
—  For  the  proper  performance  of  its  duties,  every  modern  departments, 
government  must  fulfil  at  least  two  requirements.  First, 
there  must  be  a  suflficiently  complex  organization  to  accom- 
plish the  many  and  varied  tasks  of  governing.  That  is, 
there  should  be  enough  parts  to  the  machinery  of  govern- 
ment so  that  but  few  duties  are  required  of  each  part,  these 
few  duties  being  alike  in  character.     However  numerous 

327 


328 


The  American  Federal  State 


Union  of 
departments. 


Types  based 
on  relation  of 
executive  to 
legislature. 


Character  of 
the  cabinet 
system. 

Dicey,  Law 
of  the  Const., 
413-416. 

Medley, 
Eng.  Const' I 
Hist,,  no, 
III. 


these  parts  may  be,  they  may  then  be  classified  as  belong- 
ing to  the  legislative,  the  executive,  or  the  judicial  branch 
of  the  government,  so  that  at  least  certain  of  the  parts, 
i.e.  those  belonging  to  the  same  branch,  will  work  together. 
Second,  these  branches,  or  departments,  must  be  more  or 
less  united  in  their  action,  or  we  have  three  central  gov- 
ernments instead  of  one,  and  that  is  little  better  than  no 
government  at  all. 

390.  Two  Tjrpes  of  Government.  —  It  is  the  relation  of 
the  departments  to  each  other  which  is  of  special  interest 
in  this  chapter.  We  notice  upon  observation  that  there 
are  in  existence  two  types  of  government,  which  represent 
respectively  close  union  of  the  departments  and  a  fair 
degree  of  independence  among  them.  Great  Britain  and 
the  United  States  are  usually  selected  as  the  best  examples 
of  these  types.  In  the  former  the  fusion  of  the  legislative 
and  executive  departments  is  remarkably  complete,  for, 
though  they  are  separate  in  form,  they  work  almost  as  a 
single  body,  the  judiciary  being  subordinated  to  them.  In 
the  United  States,  on  the  contrary,  every  effort  has  been 
made  to  prevent  the  coalescence  of  the  departments,  and, 
so  far  as  possible,  not  only  are  the  departments  kept  inde- 
pendent, but  coordinate  as  well.  As  many  political  sci- 
entists of  experience  have  preferred  the  English  system  to 
our  own,  and  have,  in  some  cases,  gone  so  far  as  to  favor  an 
adoption  of  a  modification  of  the  cabinet  or  parliamentary 
form  in  this  country,  the  character  of  each  system  with  the 
advantages  most  apparent  will  be  briefly  considered. 

391.  Cabinet  Government.  —  In  England  almost  all  real 
power  is  centred  in  the  hands  of  a  committee  of  Parlia- 
ment, which  has  extraordinary  control  over  legislation  and 
complete  charge  of  executing  the  laws.  This  committee 
is  called  the  Cabinet.  Its  omnipotence  is  apparent  rather 
than  real,  because  it  can  use  its  power  only  so  long  as  it 
reflects  the  wishes  of  the  House  of  Commons.  We  have 
presented  a  curious  paradox  —  the  Cabinet  is  master  so 
long  as  it  is  servant.     Just  as  soon  as  it  gets  out  of  sym- 


The  Relations  of  the  Departments  329 

pathy  with  the  lower  house,  custom  compels  it  to  resign, 
unless,  by  calling  an  election  for  a  new  house,  the  Cabinet 
can  obtain  a  majority  of  the  Commons. 

392.  Advantages  of  the  Cabinet  System. — Three  princi-  Concentra- 

pal  advantages  are  claimed  for  parliamentary  government.   *'°"  °^  power 
^  °  '■  ■>  °  andresponsi- 

(i)  It  concentrates  power.     The  government  has  but  one  biiity. 

policy:  that  of  its  leaders.     No  time  is  lost  in  friction  j-j-         ^ 

between  the  different  departments  or  the  separate  houses. 

^  ,     ,  1       •  ,         ,  Bagehot, 

Every  part  of  the  government  works  m  perfect  harmony  £„^.  const. 

with  every  other,  showing  the  existence  of  a  single  source 
of  authority.  In  a  word,  the  government  is  efficient. 
(2)  The  Cabinet  is  responsible  for  the  success  or  failure 
of  the  government's  policy.  To  irresponsible  power  have 
been  due  many  of  the  evils  about  which  history  has  only 
too  many  tales  to  tell.  For  this  reason  men  have  feared 
the  concentration  of  authority.  But  the  experience  of  Eng- 
land for  a  century  seems  to  show  that  under  proper  re- 
straint, centralization  of  power  may  be  an  unmixed  benefit. 
This  responsibility  is  enforced  by  compelling  a  Cabinet  to 
resign  when  the  House  lacks  confidence  in  its  leaders.  If 
the  Cabinet  thinks  it,  and  not  the  House,  is  supported  by 
the  people,  an  election  is  called,  and  the  Cabinet  stays  or 
withdraws  according  to  the  verdict.  By  this  means  (3)  the 
government  responds  quickly  to  public  opinion,  because 
individual  members  are  constantly  being  chosen,  so  that 
the  complexion  of  the  House  is  quickly  modified  if  the 
government  becomes  unpopular.  There  is  nothing  rigid 
about  the  system,  so  that  it  is  not  necessary  to  change 
governments  any  oftener  than  the  people  demand;  and  they 
must  be  changed  if  the  governing  class  wishes,  though  not 
at  once. 

393.  Cabinet  Government  under  English  and  American  Con-   Reasons  for 
ditions.  —  Efficiency  and  adaptability  to  new  needs  are  success  in 

„,.,/.,  ,      „  England. 

not  equally  desirable  in  the  governments  of  all  countries. 
England  seems  to  have  developed  the  forms  of  government 
which  gives  the  best  results  for  her,  but  this  is  due  quite 
as  much  to  certain  political  conditions  as  to  her  cabinet 


330 


The  American  Federal  State 


Dangers  in 
the  system  in 
America. 


Historical 
and  practical 
reasons  for 
its  existence 
in  United 
States. 


system.  The  English  are  preeminently  conservative,  and 
the  control  of  affairs  of  state  is,  and  has  been,  in  the  hands 
of  her  most  conservative  men.  There  never  has  been  in 
the  British  Isles  anything  like  the  practical  application  of 
government  by  the  people  that  has  taken  place  in  America. 
An  almost  universal  suffrage  has  not  meant  anything  like  a 
real  democracy.  All  political  matters  are  still  under  the 
control  of  a  select  set  of  men  —  men  of  education,  cul- 
ture, wealth,  and  ability  —  who  have  given  England  good 
government  while  maintaining  class  rule. 

We  know  perfectly  well,  from  the  experience  of  France 
and  other  nations,  that  cabinet  government  demands  for 
its  most  successful  operation  conditions  similar  to  those 
existing  in  England.  Even  Bagehot,  among  the  ablest  of 
the  critics  and  admirers  of  the  British  Constitution,  is 
perfectly  frank  in  admitting  that  the  efficiency  of  the  Cabi- 
net would  be  a  serious  defect  under  true  government  by  the 
people,  simply  because  under  parliamentary  government  of 
the  English  types  public  opinion  may  be  brought  to  bear, 
with  tremendous  force,  upon  the  Parliament  and  the  Min- 
istry. Two  dangers  arise  from  this,  apparently  contra- 
dictory, really  twin  evils:  (i)  Governments  that  are  too 
representative  of  the  masses  would  wield  a  force  uncon- 
trolled so  long  as  it  exists,  and  would  tend  to  degenerate 
into  mob  rule.  (2)  Change  from  one  dictatorial  govern- 
ment to  another  is  rendered  easy. 

With  conditions  as  they  are  on  this  side  of  the  Atlantic, 
it  seems  best  to  accept  the  conclusion  of  Sir  Edward  Free- 
man that  both  England  and  the  United  States  have  the 
government  best  adapted  to  their  requirements. 

394.  Presidential  Government.  —  The  reason  for  the 
marked  separation  of  the  departments  in  the  United  States, 
however,  is  historical  rather  than  practical.  That  is,  it  is 
the  outgrowth  of  the  conditions  of  the  last  century  more 
than  the  experience  of  this.  The  desire  which  existed  in 
the  infancy  of  our  republic  to  keep  the  government  from 
injuring  the  people  caused  statesmen  to  dread  all  concen- 


The  Relations  of  the  Departments  331 

tration  of  power  and  to  prefer  division  of  it,  even  though  Cf.  Bryce, 
cooperation  between  the  departments  was  less  perfect  and  ^}r'^^ 
responsibility  less  easily  fixed.     They  did  not  approve  of  tages). 
uncertainty  of  tenure,  even  if  that  uncertainty  meant  that 
the  administration  kept  in  closer  touch  with  the  best  feel- 
ings of  the  nation.     They  wished  fixed  terms  of  office, 
largely  because   reelection   gave  opportunities   to  keep  a 
check   on   public  servants.      This  preference   for  a  safe 
government  therefore  resulted  in  two  things:  (i)  Partial 
independence  of  the  legislative,  executive,  and  judicial 
departments;  and  (2)  terms  of  office  for  a  fixed  period, 
which    could    be    diminished    only   by  impeachment  or 
expulsion,  and  increased  by  nothing  except  reelection. 

395.  Advantages  of  Checks  and  Balances  in  America.  —  On   Increase  in 

account  of  the  rigidity  of  the  Constitution  of  1787,  due  to  stability  of 

°        •'  iij  government, 

the  difficulties  surrounding  its  amendment,  the  indepen- 
dence of  the  departments  became  one  of  the  permanent  no.xLviii. 
principles  of  our  government.  Nor  has  the  history  of  the 
nineteenth  century  produced  a  feeling  that  the  separateness 
of  the  departments  is  a  disadvantage.  No  system  of  gov- 
ernment is  without  its  defects,  and  the  American  people 
believe  that  a  safe  government  is  better  than  an  efficient 
one.  The  checks  and  balances  adopted  to  protect  the 
people  from  the  government  have  helped  to  protect  the 
people  from  themselves.  The  greatest  danger  of  a  repub- 
lic, "the  tyranny  of  the  majority,"  has  been,  to  a  large 
extent,  avoided  by  these  very  means.  Fixity  of  tenure  and 
division  of  power  have  given  us  less  government  than  we 
should  have  had  with  political  institutions  like  England's, 
and  have,  no  doubt,  often  resulted  in  delay  and  discord; 
but,  on  the  whole,  they  have  made  it  possible  for  democracy 
to  work  out  its  own  salvation. 

Some  of  the  means  by  which  the  departments  have  been  Means  by 
able  to  maintain  their  independence,  and  the  ways  in  which  ^''^'^'^  mA^- 
they  have  influenced  each  other,  are  indicated  in  the  fol-   departments 
4'owing  paragraphs.     It  is  the  intention  to  emphasize  the  has  been 
actual  working  relations  of  the  departments,  rather  than  the 


332 


The  American  Federal  State 


Very  great 
power  ex- 
ercised by 
laws  or 
through 
committees. 

Bryce, 

Wilson, 
Cong.  Gov't, 
270-272, 
277-279. 


theoretical  and  constitutional  checks  and  balances,  and 
care  should  be  taken  to  distinguish  between  powers  ordi- 
narily or  actually  used,  and  those  which  one  department 
has  over  another,  but  which,  for  some  reason,  have  lain 
dormant,  and  have  therefore  partially  disappeared  through 
disuse. 

396.  Congressional  Control  over  the  Executive  Departments. 
—  There  has  never  been  very  great  danger  that  Congress 
would  become  subservient  to  either  the  President  or  the 
courts,  for  it  has  constantly  tended  to  encroach  upon  the 
sphere  of  these  branches.  The  American  practice  of  allow- 
ing the  legislature  to  specify  with  great  exactness  the  way 
a  law  shall  be  executed,  has  left  to  the  executive  little  dis- 
cretion, and  has  given  Congress  constant  supervision  over 
the  execution  and  the  administration  of  the  laws.  To 
oversee  the  work  of  the  executive  departments  each  house 
has  created  standing  committees,  that  have  charge  of  all 
matters  arising  in  Congress  which  relate  to  the  departments 
of  State,  the  Treasury,  etc.  Among  the  duties  belonging 
to  these  committees  is  that  of  organizing  the  departments, 
i.e.  deciding  how  many  and  what  bureaus  and  divisions  they 
have,  what  work  is  assigned  to  each,  the  force  required  for 
the  performance  of  the  work,  and  many  other  details.  Each 
year  the  departments  ask  for  what  money  they  need  or 
desire,  but  obtain  what  the  committees  are  willing,  unless 
Congress  overrules  the  committees  and  indorses  the  esti- 
mate of  the  departments.  If  a  secretary  wishes  some 
reform  in  methods  employed  in  his  department,  or  believes 
he  should  be  given  enlarged  power,  there  is  no  pressure  he 
can  bring  to  bear  upon  the  committee  except  suggestions 
through  the  President's  message,  and  personal  appeal  or 
silent  and  secret  influences.  In  short,  the  secretary  can 
do  very  little  with  Congress,  and  Congress  may,  in  theory, 
do  almost  anything  with  him,  may,  in  fact,  abolish  the 
department  or  any  part  of  it.  Drastic  measures  are  of 
course  quite  uncommon;  but  if,  as  is  usually  the  case,  the 
secretary  is  better  posted  on  the  requirements  of  the  depart- 


The  Relations  of  the  Departments  333 

ments,  even  the  possibility  of  executive  subordination  is 
not  desirable. 

As  often  happens,  the  real  power  does  not  lie  where  we  Discretion- 
naturally  expect.     The  departments  are,  it  is  true,  greatly  ^^  power  of 
dependent  upon  the  good  will  of  Congress;  but  they,  never-   ments. 
theless,  have  a  great  deal  of  liberty  in  managing  their  own 
affairs,  so  that  frequently  Congress  has  less  control  than 
seems  necessary.     For  example,  take  the  Treasury  during 
the  last  twenty-five  years  of  the  nineteenth  century.     Who 
gave   it  authority  to  lay  aside  ^100,000,000  for   a  gold 
reserve?    Who  conferred  upon  it  the  right  to  discriminate 
between  gold  and  silver  in  conducting  the  business  of  the 
government?    Notice  the  ease  with  which  a  Secretary  of 
the  Treasury  made  use  of  an  old  law  to  issue  bonds  Con- 
gress begrudged,  and  we  can  but  admit,  after  observing 
these  facts  and  others  like  them,  that  at  least  one  depart- 
ment has  exercised  its  discretion  in  matters  of  moment. 

397.  Congress  and  the  President.  —  Much  of  the  Presi-  Means  of 

dent's  power  is  derived  directly  from  the  Constitution  and  avoiding  a 

veto, 
is,  therefore,  to  quite  an  extent,  beyond  the  reach  of  the 

most  avaricious  Congress.     His  right  of  participating  in   f*^"^ 
legislation  through  the  veto  can  be  overridden  only  by  a  two- 
thirds  majority  of  each  house  and  constant  opposition  to  yj^^  °\\\  *" 
the  administration.     Congress  is  more  likely  to  resort  to  642-645. 
subtle  means.     One  of  these  that  has  played,  and  may 
again  play,  a  by  no  means  minor  role  is  the  rider.     This 
consisted  of  attaching  to  an  appropriation  bill  some  meas- 
ure distasteful  to  the  President.     As  the  President  could 
not  distinguish  between  the  totally  different  portions  of  the 
new  bill,  he  was  obliged  to  veto  all  or  let  it  pass.     Since 
the  appropriations  were  indispensable  and  might  often  affect 
his  own  work,  the  President  usually  signed  his  name  to 
a  bill  containing  a  rider  he  disapproved,  but  the  practice 
became  so  objectionable  that  it  is  now  forbidden  by  the 
rules  of  the  House. 

If  Congress  succeeds  in  making  a  law  against  the  wishes  ^^*".*  °^ 
of  our  chief  executive  and  he  ignores  it.  Congress  is  forced  President. 


334 


The  American  Federal  State 


Ford,  Amtr. 

Politics, 

287-291. 


Treaties  and 
appoint- 
ments. 

Bryce,  78-81. 

Harrison, 
This  Country 
of  Ours,  100- 
104,  107-110, 
,^34-141. 


Influence 
and  power 
of  President 
over  Con- 
gress. 


to  resort  to  other  methods.  It  may  gain  its  ends  by  new 
legislation.  It  may  coerce  the  President  by  refusing  to 
consider  the  bills  he  has  most  at  heart,  by  blocking  in 
every  way  anything  he  may  attempt,  or  by  withholding  sup- 
plies or  money  for  executive  officials,  or  even  the  Presi- 
dent. When  Congress  is  really  in  earnest,  none  but  the 
strongest  or  most  obstinate  executives  have  dared  to  thwart 
it,  and,  in  consequence,  more  than  one  President  has 
become  the  tool  of.  Congress.  If,  however,  the  legislature 
fails,  even  by  the  use  of  such  methods,  it  has  still  the  right 
of  impeachment,  intrusted  to  its  care  by  the  constitutional 
convention  in  order  to  make  a  dictatorship  impossible. 
But  its  practical  value  is  almost  nil;  for  the  failure  of  the 
reconstructive  Congress  to  win  a  victory  in  its  warfare  with 
President  Johnson  by  the  use  of  impeachment  seems  to 
have  consigned  that  check  to  oblivion  and  make  it  little 
more  than  an  historic  memory. 

398.  The  Senate  and  the  President.  —  A  more  real  menace 
to  the  independence  and  efficiency  of  the  President  exists 
in  the  negative  which  the  Senate  has  upon  his  power  of 
making  treaties  and  appointments.  That  the  Senate  does 
not  hesitate,  even  when  on  the  best  of  terms  with  the  Presi- 
dent, to  interfere  with  his  actions  for  the  purpose  of  pre- 
serving its  own  dignity  is  plainly  shown  in  numerous  cases, 
recent  and  remote.  But  where  ill  feeling  exists  between 
the  upper  house  and  the  executive,  the  latter  has  been 
able  to  make  no  headway  in  his  negotiations  with  other 
nations  unless  willing  to  do  as  the  Senate  wishes,  and  his 
appointees  have  been  ignored  or  rejected  with  systematic 
regularity.  As  a  matter  of  fact,  the  power  of  appointment 
belongs  rather  to  the  Senate,  no  matter  how  cordial  may 
be  its  relations  with  the  President,  while  its  feelings  on 
treaties  must  always  be  taken  into  account. 

399.  Executive  Domination  of  Congress.  —  Nevertheless, 
the  working  relations  of  the  two  departments  are  not  one- 
sided. The  periods  of  presidential  weakness  have  been 
numerous  and  prolonged,  but  they  have  been  due  more  to 


The  Relations  of  the  Departments  335 

the  character  of  our  chief  magistrates  than  to  any  defect  in  Johnston,  in 
the  presidency  itself.    The  way  in  which  Jefferson,  Jackson,    ^-^'or,  ii, 
and  later  Presidents  have  brought  Congress  to  their  own 
way  of  thinking  in  time  of  peace,  is  conclusive  proof  that  />°/,/'^^  ^' 
a  strong  executive  is  not  likely  to  submit  to  the  domina-  289. 
tion  of  Congress.     The  veto  is  one  of  the  most  powerful  Burgess,  Poi. 
means  used  to  bring  executive  pressure  to  bear,  and  the  Science,  11, 
few  instances  where  the  veto  has  been  interposed  in  vain  *^*"*^7- 
point  a  significant  moral.     The  message  means  less  than  it 
once  did,  for  in  our  early  history  it  was  carefully  consid- 
ered and  discussed,  often  being  the  chief  basis  for  proposed 
legislation.     Yet  both  the  annual  and  the  special  message 
may  give  a  new  turn  to  the  work  of  the  law-making  body. 
This  is  especially  true  of  the  messages  sent  to  special  ses- 
sions convened  at  the  wish  of  the  President.    Congress  has 
been  forced  to  consent  to  laws  which  were  objectionable 
to  the  larger  part  of  at  least  one  chamber.     The  repeal  of 
the  Sherman  Silver  Act,  in  1893,  is  a  case  in  point.     So 
long  as  the  President  alone  can  call  Congress  together  in 
extraordinary  session,  he  has  an  advantage  over  that  body, 
positive  and  negative  in  its  character :  positive  in  that  he 
can  summon  it  to  do  what  he  wishes,  though  he  cannot 
compel  it  to  do  what  he  asks;  negative,  because  no  matter 
how  much  Congress  feels  the  need  of  a  meeting,  it  can  hold 
one  if  he  is  unwilling  only  by  making  concessions  of  some 
magnitude. 

400.  The  Independence  of  the  Executive.  —  Besides  this  Almost  un- 
direct  influence  over  the  action  of  the  national  legislature,   '""'**«i  ""'•>- 

,       T^       .  ,  ...      tary  power. 

the  President  possesses  certain  powers  whose  exercise  is 
not  equally  limited  by  Congress,  but  which,  nevertheless,    ^  \n  Forum 
affects  Congress  greatly.     The  two  which  are  most  potent  XXiii. 
for  good  or  evil  deal  with  the  control  of  the  army  and  the   ^^^97). 
acquisition  of  territory.     The  army  is  created  and  organ- 
ized by  Congress  for  a  period  not  exceeding  two  years.   Mod^rn'^i 
War  can  be  declared  by  that  body  alone.     Yet  the  Presi-  insHtuHom, 
dent  can  do  almost  as  he  pleases  with  the  military  forces  ^°~^^^- 
of  the  United  States,  and  he  may  compel  the  Congress  to 


336 


The  American  Federal  State 


Power  in 
annexations. 


Evidences 
and  results  of 
separateness. 

McConachie, 
Cong.  Com- 
mittees, 

Bryce, 
aoi-313. 


admit  that  war  exists,  as  he  did  in  1846.  In  other  words, 
the  President  may  use  the  army  in  such  a  way  that  he  really 
begins  war,  and  Congress  has  no  alternative  but  to  indorse 
his  action,  or  to  risk  loss  of  national  prestige  by  an  un- 
seemly withdrawal  from  hostilities.  We  found  ourselves 
in  that  predicament  at  least  twice  during  the  nineteenth 
century. 

In  acquiring  and,  to  a  certain  extent,  in  controlling  ter- 
ritory, the  President  is  even  less  subject  to  the  check  of 
Congress.  Enlargement  of  our  domain  has  never  been 
unpopular  with  our  people,  and  even  w^hen  two-thirds  of 
the  Senate  have  not  personally  favored  the  treaty  by  which 
purchase  was  made,  they  have  not  dared  to  reject  it.  Had 
the  President  possessed  no  initiative  of  this  character,  it  is 
reasonably  certain  that  our  boundaries  would  be  less  exten- 
sive than  they  now  are.  Almost  without  exception  this 
territory  was  at  first  under  the  absolute  control  of  the  Presi- 
dent, and,  in  some  cases,  Congress  has  found  it  difficult 
or  unwise  to  supplant  the  provisional  government  for  a 
period  of  years. 

401.  Cooperation  between  Congress  and  the  Executive. — 
Evidently,  then,  the  independence  of  the  executive  is  in 
no  immediate  danger.  But  what  about  the  bonds  of  union 
between  the  legislature  and  the  President?  Are  these 
bonds  of  such  a  character  that  each  department  may  work 
to  advantage  with  the  other,  or  are  the  departments  con- 
stantly clashing  in  the  performance  of  their  ordinary  duties? 
Their  separateness  might  lead  us  to  think  that  they  hinder 
more  than  they  help  each  other,  but  such  is  not  the  case. 
Although  the  work  of  each  relates  to  the  same  laws,  it  deals 
with  different  phases  of  those  laws,  and  neither  one  is  in 
any  real  sense  dependent  on  the  other  in  performing  the 
majority  of  the  tasks  assigned  to  it.  There  can  be  no 
doubt  that  in  many  cases  much  needed  legislation  has  been 
prevented  because  the  House,  the  Senate,  or  the  President 
has  objected,  and  no  means  could  be  found  to  whip  the 
refractory  member  into  line.      It  is  also  probable  that 


The  Relatiofts  of  the  Departments  337 

many  of  our  laws  are  less  perfect  in  form  and  content  than 
they  would  be  if  each  had  been  imposed  by  some  one  set 
of  leaders,  and  had  not  been  subjected  to  changes  at  every 
stage  of  its  career  as  a  bill.  The  great  objection  to  the 
separation  of  the  departments  is,  that  there  is  no  one  body 
of  men  to  whom  the  executive  and  the  legislature  are  both 
responsible,  and  whose  direction  they  follow;  but,  even  if 
each  of  our  departments  places  the  emphasis  upon  different 
laws,  they  cannot  greatly  hinder  one  another,  and  their 
joint  responsibility  to  the  same  constituency  —  the  people 
of  the  United  States  —  and  their  dependence  upon  public 
sentiment,  insures  a  reasonable  cooperation  where  that  is 
indispensable. 

402.  The  Effect  of  Political  Parties  upon  the  Departments.   Cooperation 
—  The  working  relations  of  the  departments,  particularly   ^'^'j??^^ 
Congress  and  the  executive,  have  been  affected  less  by  their  parties, 
theoretical  independence  of  each  other  than  by  the  fact  p^j.^  ^^^ 
that  a  single  party  controls  all  of  them,  or  one  party  has  a  PoiMcs, 
majority  of  one  or  both  Houses  of  the  legislature,  while  vxviii 
the  other  has  chosen  the  President.     There  have  grown  up 
between  the  Congress  and  the  executive  branch  numerous 
customs  and  methods  which  have  enabled  the  government 
to  bridge  the  chasm  between  these  departments;  but  these 
customs  can  be  used  to  the  best  advantage  only  when  the 
two  departments  represent  the  same  policy  and  believe  in 
similar  principles.     If  the  President  and  the  majority  of 
the  Senate  and  House  are  of  the  same  political  faith,  the 
effect  is  immediately  noticeable  in  the  amount  of  impor- 
tant business  transacted.     But  when  one  party  dominates 
one-half  of  Congress  and  the  opposition  controls  the  other 
half,  or  when  the  President  and  Congress  are  at  swords' 
points,  not  only  does  legislation  suffer,  but  the  adminis- 
tration of  the  law  may  be  hampered  by  lack  of  proper 
understanding  between  the   secretaries  of   the  executive 
departments  and  the  leaders  of  Congress.     So  vitally  do 
the  parties  affect  the  success  of  our  national  government 
that  many  students  of  our  institutions  have  sought  to  per- 


338  The  American  Federal  State 

feet  the  union  of  the  departments  through  the  agency  of 
the  political  party. 
Heads  of  403.  Closer  Union  of  the  Departments.  —  Some  of  these 

departments  gjjjj  ©thers  believe  that  we  shall  get  better  results  in  law- 
(proposed).  making  and  administration  by  allowing  the  members  of  our 
^,    ,  Cabinet  to  appear  in  either  house  of  Congress,  to  address 

at  end  of  them  on  subjects  relating  to  their  departments,  and  even 
chapter.  ^^   introduce   bills.      Certainly   some   confusion   may  be 

avoided  in  this  way,  and  the  secretaries  might  have  con- 
siderable influence  in  securing  new  and  valuable  laws.  So 
far  as  the  secretaries  are  concerned,  there  would  be  a  gain 
in  dignity,  and  possibly  in  power,  over  the  present  rather 
unsatisfactory  method  of  appearing  before  committees. 
Yet  we  must  remember  that  the  real  business  of  Congress 
is  done  in  committee,  and  that,  especially  in  the  House, 
oratory  carries  little  weight.  The  suggestions  are  well 
worth  careful  study,  and  if  their  adoption  would  raise  the 
standard  of  legislation,  as  well  as  render  administration 
more  effective,  the  proposed  plan  would  be  doubly  welcome. 
Advantage  of       404.   Influence  of  the  Judiciary  over  Congress.  —  Since  our 

judicial  inde-  courts  are  the  guardians  of  the  Constitution  and  of  indi- 
p)endence. 

vidual  rights,  it  is  necessary  that  they  should  be  as  free  as 

possible  from  political  control  and  legislative  interference. 
As  they  have  expressly  refused  to  consider  cases  that  were 
political  rather  than  legal  (§  381),  the  fear  that  they  may 
constitute  an  unreasonable  check  on  Congress  is  ground- 
less; consequently  the  advantages  of  judicial  independence 
are  many,  the  disadvantages  few. 
Decisions  in-       So  far  as  the  courts  can  affect  the  other  departments,  their 
voiving  laws,  powers  are  negative  rather  than  positive.     Their  decrees 
Cooiey,  are,  in  effect,  "Thou  shalt  nots"  restraining  from  action 

1T-16     "'     ^fig^^^y  or  constitutionally  wrong,  yet  at  the  same  time 
producing  a  higher  degree  of  public  morality  among  the 

Willoughby,       ,  ,  „  ... 

Supreme  departments  of  government  as  well  as  among  citizens,  and 
Court.  often  leading  to  increased  activity  of  the  central  govern- 

ment.    The  wholesomeness  of  the  influence  exerted  over 
Congress  is  observable  in  that  list,  but  two  hundred  in  all. 


The  Relations  of  the  Departments  339 

of  cases  involving  laws  that  have  been  declared  unconsti- 
tutional. The  magnitude  of  the  power  wielded  over  the 
same  body  may  be  suggested  by  calling  to  mind  but  two; 
Marbury  v.  Madison  (§  145)  and  the  Slaughter  House  Cases 
(§§  213,  248,  249);  while  the  way  Congress  has  been  aided 
and  strengthened  is  apparent  from  the  effect  of  the  deci- 
sions in  McCulloch  v.  Maryland  (§  168)  and  Texas  v. 
White  {%  213). 

405.  Judicial  Dependence  on  Congress.  —  The   indepen-  Dangers  of 
dence  of  our  courts  is  maintained  quite  as  much  by  the  i^gisiaUve 

,  ,  ,.  .  ,  ...    interference. 

operation  of  public  sentiment  as  by  any  constitutional 
guarantees.  So  long  as  the  existence  of  the  lower  national  ^'^'^*' 
courts,  the  number  of  the  Supreme  Court  justices,  and,  to 
some  extent,  the  jurisdiction  of  the  different  courts  is 
dependent  upon  statute,  so  long  does  the  legislative  depart- 
ment hold  the  judicial  department  at  its  mercy.  The  just 
pride  taken  by  the  people  in  the  integrity  and  ability  of 
the  Supreme  Court  especially  has  restrained  Congress 
from  attempting  to  use  its  power  except  in  certain  rare 
instances,  and  the  need  of  executive  cooperation  in  a  radi- 
cal change  of  the  judiciary  tends  to  lessen  any  danger  that 
might  exist.  In  the  period  of  reconstruction,  Congress  did 
more  than  once  prevent  the  court  from  interfering  with  its 
work  in  the  South;  but,  under  such  extraordinary  condi- 
tions, when  principles  of  long  standing  were  not  carefully 
observed,  and  more  important  infringements  of  constitu- 
tional rights  took  place,  these  acts  were  of  comparatively 
minor  importance.  The  spirit  with  which  the  nation 
accepted  the  federal  judiciary  act  of  1801,  by  which  extra 
circuit  judgeships  were  created  for  partisan  reasons,  and 
C  the  law  of  1869,  which  placed  two  more  justices  on  the 
Supreme  Court  bench,  partially  for  the  purpose  of  revers- 
ing a  decision  of  that  court,  are  evidences  that  political 
partioS  cannot  afford  to  do  serious  injury  to  the  judiciary. 

40^.  The  President  and  the  Courts.  —  The  right  of  the   Executive 
President  to  appoint  justices,  with  the  advice  of  the  Sen-   ^'sr^gard  of 

•    1-   ,  1  t  ,        t  1       .  .  .  decisions. 

ate,  us  ''able  to  abuse  only  when  death  or  resignation  occurs 


340 


The  American  Federal  State 


Willoughby, 

Supreme 

Court. 

Bundy, 
Separation  of 
Gov'tal 
Powers, 
63-68. 


Separation 
without  inde- 
pendence. 

Cf.  Bundy, 
Separation 
of  Gov'tal 
Powers, 
39-46. 


at  an  abnormal  rate  during  a  particular  administration. 
But  as  the  inclination  to  select  personal  friends  or  political 
allies  is  not  less  marked  during  recent  years  than  in  our 
earlier  history,  constant  watchfulness  is  necessary  to  main- 
tain the  high  standard  of  the  past.  The  President  is,  how- 
ever, quite  as  likely  to  do  the  court  harm  by  refusing  to 
respect  its  decisions.  The  three  most  conspicuous  exam- 
ples of  this  contempt  were  Jefferson's  neglect  to  answer 
subpoena  of  the  trial  of  Aaron  Burr  (1807),  Jackson's 
treatment  of  Marshall  in  Worcester  v.  Georgia  (1831), 
(§  176),  and  Lincoln's  refusal  to  allow  Taney  to  issue  writs 
of  habeas  corpus  (1862),  (§  204).  Cases  of  this  character 
are  rare,  as  the  courts  never  seek  to  dictate  what  policy  the 
executive  shall  adopt,  and  in  two  of  those  enumerated  the 
action  seemed  justified  by  the  circumstances.  Yet  it  can- 
not be  truthfully  said  that  each  department  is  the  final  inter- 
preter of  its  own  powers  except  within  that  limited  field 
left  it  by  the  judiciary.  In  regard  to  most  of  the  duties  of 
Congress  and  the  President,  the  decision  of  the  court  is 
final,  alterable  only  through  the  votes  of  the  people. 

407.  The  Departments  of  the  States.  — The  separation  of 
the  departments  in  the  states  does  not  seem  to  have  given 
as  great  satisfaction  as  in  the  national  government,  and  its 
comparative  failure  may  be  interpreted  to  mean  that  separa- 
tion without  independence  is  not  desirable.  In  the  states 
the  executive  department  is  much  more  taken  up  with 
details  of  administration,  and  less  concerned  with  duties 
of  importance,  than  the  national  executive.  In  addition, 
these  administrative  tasks  are  assigned  to  many  officials 
only  nominally  connected  with  each  other.  Naturally, 
then,  the  state  executive  is  in  a  position  much  inferior  to 
that  of  the  legislature.  The  judiciary  suffers  in  somewhat 
the  same  way;  for  though  it  has  the  right  to  declare  laws 
null  and  void,  it  has  much  less  influence  than  the  national 
courts  in  defining  the  sphere  of  legislative  action.  On  the 
other  hand,  the  legislature  enjoys  an  unusual  degree  of 
power  because  its  powers  are  not  specific  and  enumerated, 


The  Relations  of  the  Departments  341 

but  general  and  residuary.  That  is,  all  of  the  limitations 
placed  upon  it  are  negative  in  character,  it  being  excluded 
from  certain  things  by  the  United  States  and  the  state  con- 
stitutions, all  else  being  left  to  its  charge.  Not  content 
with  these  extensive  legislative  powers,  it  spends  much  of 
its  time  arranging  the  details  of  administrative  action,  thus 
further  subordinating  the  executive  officials  to  itself.  It 
is,  therefore,  more  like  the  English  Parliament  than  the 
American  Congress,  although  not  an  omnipotent  body  like 
the  former.  For  all  of  these  reasons,  the  legislative  de- 
partments of  the  states  may  be  said  to  control  the  other 
departments,  though  the  latter  are,  in  theory,  separate  and 
independent. 

QUESTIONS  AND  REFERENCES 
General  Relations  of  Executive  £uid  Legislature 

(§§  389-395) 

a.  For  the  superiority  of  parliamentary  over  presidential  govern- 
ment, consult  Fiske,  Critical  Period,  289-300 ;  Bryce,  American  Com- 
monwealth, chap.  XXIV;  Bagehot,  English  Constitution,  chap.  II; 
Wilson,  Congressional  Government,  chap.  V ;  Bradford,  Lessons  of 
Popular  Government,  II,  320-415;  also  White,  "  Parliamentary  Gov- 
ernment in  America,"  in  Fortnightly  Review,  Vol.  XXXII  (1879),  505- 

5«7- 

b.  On  the  advantages  of  presidential  government  in  the  United 
States,  see  Snow,  "Cabinet  Government  in  the  United  States,"  in 
A.  A.  A.,  Ill  (1892),  i-ii,  and  in  A.  H.  A.,  IV  (1890);  McConachie, 
Congressional  Committees,  211-258;  Lowell,  "Cabinet  Responsibility," 
in  his  Essays  on  Government;  and  Freeman,  "Presidential  Govern- 
ment," in  National  Review,  XIX  (1864),  I  et  seq. 

1.  What  has  been  the  degree  of  success  of  parliamentary  govern- 
ment in  other  countries  than  England  ?  What  conditions  in  France 
affect  its  operation  there  ? 

2.  Make  a  list  of  the  actual  powers  exercised  by  the  English  Cabinet 
from  some  manual  of  the  English  Constitution,  and  show  what  kinds  of 
powers  their  executive  has  that  ours  has  not. 

3.  Why  is  concentration  of  power  not  an  evil  necessarily  ?  How  is 
responsibility  enforced  in  the  English  system  ?    How  for  our  Presi- 


342  The  American  Federal  State 

dent  ?  for  our  Congress  ?    Can  an  undesirable  law  be  repealed  most 
easily  in  England  or  in  America  ?     Explain  how. 

i.  Gassify  modern  governments  as  parliamentary  or  presidential,  as 
far  as  possible. 

ii.  Name  the  great  checks  and  balances  of  the  American  system. 
Enumerate  the  means  or  minor  checks  by  which  the  great  balances 
are  maintained. 

Congress  and  the  Executive  (§§  396-403) 

a.  Plans  for  perfecting  the  fusion  of  the  departments  will  be  found 
in  some  of  the  references  under  a,  above;  also  in  Report  of  Senate 
Committee  (1883),  given  in  appendix  of  Ford's  Rise  and  Growth  of 
American  Politics.  See  also  Ford,  ibid.,  365  etseq.,  and  Brown  "  Cabinet 
Officers  in  Congress,"  At.  Man.,  Vol.  L,  95  et  seq. 

1.  Is  the  independence  of  the  three  departments  in  our  central 
government  so  pronounced  that  we  have  three  governments  instead  of 
one  ?  If  not,  is  there  any  danger  that  they  may  become  so  separated? 
Is  better  cooperation  desirable  ?     How  can  it  be  best  obtained  ? 

2.  Show  how  the  executive  and  the  executive  departments  affected 
our  financial  policy  under  Jackson. 

3.  What  is  the  purpose  of  a  committee  of  investigation  ?  How  does 
it  collect  evidence  ?     What  is  the  usual  result  of  its  work  ? 

4.  Trace  the  loss  of  presidential  power  after  the  War  of  Secession, 
and  show  what  influences  led  to  his  regaining  a  position  of  prominence. 

5.  Find  what  Congresses  since  1875  li^ive  been  controlled  by  the 
party  which  had  elected  the  President.  What  bills  of  importance 
were  passed  by  them  ?  How  did  the  nation  approve  their  work  as 
shown  in  the  next  elections  ?  What  Congresses  have  done  the  best 
work  since  1875  '  Look  up  the  composition  of  Senate  and  House, 
and  ascertain  the  reason  why  the  legislation  was  so  successful. 

6.  What  is  the  difference  between  *he  fusion  of  the  departments 
suggested  in  §  403  and  that  actually  existing  in  the  British  govern- 
ment ?  Is  it  possible  to  devise  a  compromise  between  presidential 
and  parliamentary  government  that  avoids  the  most  glaring  defects 
of  each  ? 

The  Courts  and  the  Other  Departments  (§§  404-407) 

I.  What  are  the  duties  of  the  judiciary  committees  of  the  Senate 
and  House  ?  Do  they  command  some  of  the  best  men  of  Congress  ? 
Does  the  composition  vary  from  Congress  to  Congress  ?  Are  they  a 
binderance  or  a  help  to  the  courts  ?     (Cf.  McConachie.) 


The  Relations  of  the  Departments  343 

2.  What  legal  right  had  Lincoln  to  refuse  to  deliver  Merriman  for 
trial  on  request  of  the  chief  justice  ?  What  moral  right  ?  In  cases 
of  insurrection,  may  the  military  courts  entirely  supersede  the  regular 
ones  ?    If  so,  under  what  conditions  ?     (Cf.  §  204.) 

3.  If  a  United  States  revenue  official  imposes  upon  you  an  exces- 
sive and  you  believe  illegal  tax,  what  remedy  have  you  ? 

4.  Would  the  separation  of  the  departments  be  an  advantage  with- 
out their  independence  of  each  other  ?  Consider  fully  the  bearing  of 
§  407  upon  this  question. 


CHAPTER    XVIII 

THE  STATES:   CONSTITUTIONS  AND  GOVERNMENTS 

Qeneral  References 

Wilson,  The  State,  469-506. 

Hinsdale,  The  American  Government,  369-391. 

Bryce,  The  American  Commonwealth  (abd.  ed.),  287-396.    The  best 

brief  account. 
Clark,  Outlines  of  Civics,  109-143.     Outlines  and  questions. 
Cleveland,   Groxvth  of  Democracy,  109-127,  312-351.      An  excellent 

summary  of  details. 
Oberholtzer,  The  Referendum  in  America,  99-172  (the  second  book 

of  that  name).     On  constitutions  and  their  amendment. 
Hitchcock,  American  State  Constitutions.     Chiefly  historical. 
Jameson,   Constitutional  Conventions,   especially  chaps.  IV,  VI,  VII, 

VIII.    The  highest  authority  on  the  legal  aspects  of  conventions 

and  their  work. 
Cooley,   Constitutional  Limitations,  especially  chap.  XVI.    The  great 

authority  on  interpretation  of  state  constitutions  and  state  law. 
Shaw,  "American  State  Legislatures,"  in  Contemporary  Review,  LVI, 

555-573.     An  excellent  article  on  methods  and  powers. 
Roosevelt,  "  Phases  of  State  Legislation,"  in  his  American  Ideals. 
Stimson,  American  Statute  Law,  1-114.     Comparative  statistics  of  the 

provisions  of  state  constitutions  (1887). 
Poore,  Charters  and  Constitutions.     2  volumes.    The  texts  of  most  of 

the  charters  and  constitutions  since  1600  (to  1878). 
New    York  Constitutional  Convention  Manual.     2  volumes.    Texts 

of  all  constitutions  in  force  in  1894. 

Not  subordi-  408.  Position  of  the  States.  —  The  states  of  the  American 
natetothe  Union  are  self-governing  constituent  parts  of  the  United 
States.  States.     They  do  not  exist  primarily  or  incidentally  for  the 

Bryce  purpose  of  helping  the  national  government  carry  on  its 

291-296.         work;  they  are  essentially  uncontrolled  by  that  government, 

344 


The  States:  Constitutions  and  Governments    345 

but  over  it  they  have  no  power.  The  people  of  the  state 
are,  then,  independent  of  all  outsiders  within  their  own 
sphere  of  action.  They  may  make  their  own  state  consti- 
tution in  their  own  way,  framing  such  a  government  as  they 
desire  (provided  it  is  republican  in  form),  and  granting 
suffrage  and  civil  rights  to  whom  they  deem  it  wise,  within 
the  limitations  of  the  United  States  Constitution. 

409.  Uniformities  and  Diversities  among  the  States.  —  Diversities 
But  as  a  matter  of  fact  the  forty-five  states  exhibit  com-  principally  in 
paratively  few  differences  in  the  general  character  of  their 
constitutions,   governments,   and   laws.     In   details   these  ^P°i'°^^' 
diversities  are  both  numerous  and  conspicuous.    The  great-  Laior,  iii, 
est  dissimilarities  are  especially  observable  when  we  con-  8°^8i2. 
trast  newer  states  with  those  first  settled  or  compare  different 
sections,  that  is,  they  are  principally  due  to  historical  or 
geographical  causes,  e.g.  Michigan  and  Iowa  will  be  more 
alike  than  Michigan  and  Arkansas.     This  is  partly  because 
Michigan  and  Iowa  were  largely  settled  by  people  from 
the  same  states  and  countries,  and  partly  to  climatic  and 
other  influences. 

It  is  not  the  purpose  of  this  and  the  succeeding  chapter 
to  take  up  the  details  of  the  state  governments  and  consti- 
tutions, except  to  illustrate  the  more  important  principles, 
but  the  attempt  will  be  made  to  show  the  general  nature 
of  the  political  system  in  the  commonwealths,  which  is 
practically  alike  in  all. 

F.  J.  Stimson,  who  has  made  an  exhaustive  study  of  the  constitutions  Groups  of 
and  laws  of  the  states,  calls  attention  to  the  groups  of  states  among  the  states, 
members  of  which  there  is  considerable  identity  even  in  details.  He 
enumerates  three  groups  ;  the  largest  comprising  all  of  the  "  Northern, 
Eastern  and  Northwestern  states,  more  often  divided  into  two  main 
bodies,  the  one  following  in  its  legislation  the  general  model  of  the 
state  of  New  York,  the  other  that  of  the  New  England  states."  A 
second  group  contains  the  Southwestern  states  under  the  lead  of 
Maryland  and  Virginia,  and  a  third  includes  the  Gulf  states,  except 
Louisiana,  which  is  very  different  from  the  others  in  many  respects. 
California,  Dakota,  New  Mexico,  and  Georgia  present  many  irregu- 
larities and  in  a  measure  cannot  be  classified  with  the  others. 


346 


The  American  Federal  State 


From 
colonial 
times  to  the 
present 

Bryce,  317- 
3aa 


Constitutions 
first  made  by 
the  legisla- 
ture. 

Borgeaud, 
Adoption  and 
Amend,  of 
Consts., 
137-191. 

Appendix  E, 
Table  I. 

Later  by  con- 
ventions 
without 
ratification. 

Cleveland, 
Democracy, 
109-113. 


410.  The  Development  of  the  Written  Constitution.  —  The 

constitutions  of  the  states  naturally  grew  out  of  the  colonial 
charters  (§  66).  All  of  our  ancestors  were  accustomed  to 
the  idea  of  a  fundamental  law  superior  to  the  acts  of  the 
colonial  legislature,  and  in  most  cases  this  law  was  written. 
It  was  not  strange,  therefore,  that  when  the  old  colonial 
governments  failed  to  prove  satisfactory,  they  were  replacec 
by  others  which  were  more  popular,  and  that  the  people 
created  new  charters  or  constitutions  prescribing  the  form 
and  powers  of  government  and  enumerating  civil  rigi..;5. 
How  the  constitutions  developed,  and  how  new  methods  and 
subjects  were  introduced,  we  have  considered  in  Part  . 
At  this  point  we  might  notice  the  three  stages  in  the 
historical  process  of  constitution-making. 

411.  The  Three  Stages  in  Constitution-making.  —  (i)  The 
first  constitutions  were  made  by  legislatures.  Sometimes 
the  constitutions  were  created  by  legislative  act,  passed  like 
any  other  bill.  More  frequently  the  legislature  practically 
transformed  itself  into  a  constituent  assembly,  which  framed 
such  a  constitution  as  it  desired;  but  the  constitution 
adopted  in  this  way  could  be  changed  by  the  legislature 
without  calling  a  constitutional  convention. 

(2)  Much  more  common,  even  during  revolutionary 
times,  was  the  constitutional  convention.  This  was  chosen 
by  the  regular  voters  solely  for  the  purpose  of  making  a 
constitution.  But  so  little  had  the  idea  of  popular  coopera- 
tion in  government  spread  that  public  sentiment  did  not 
compel  the  convention  to  submit  the  completed  constitu- 
tion to  the  people  for  ratification.  Before  18 10  twenty  of 
the  twenty-five  constitutions  had  been  declared  in  force  by 
the  convention  that  framed  them,  two  of  the  others  being 
made  by  the  legislatures,  leaving  but  three  ratified  by  the 
voters.  Since  1838  this  method  has  been  used  but  five 
times,  excluding  secession  constitutions  and  those  adopted 
in  1865:  by  Florida  in  1885,  by  Mississippi  in  1890,  b^ 
South  Carolina  in  1895,  by  Delaware  in  1897,  and  by 
Louisiana  in  189S. 


The  States:  Constitutions  and  Governments    347 


(3)  The  third  stage  was  reached  when  we  find  constitu- 
tional conventions  with  ratification.  It  must  not  be  sup- 
posed that  this  mode  of  making  constitutions  was  adopted 
by  all  the  states  at  the  same  time.  Massachusetts  was  the 
first  to  use  it,  in  1778,  when  the  constitution  proposed  was 
rejected  at  the  polls.  It  is  now  used  in  practically  all  of 
the  states,  though  not  always  required  by  the  constitutions 
now  in  force.  The  people  are  thus  enabled  to  determine 
negatively,  and  to  a  certain  degree  positively,  what  shall 
be  the  character  and  powers  of  the  state  government  under 
which  they  live,  and  what  the  most  prominent  features  of 
the  statute  law  shall  be  like.  In  other  words,  by  the  ratifi- 
cation of  the  constitutions  the  people  have  taken  from  the 
state  legislature  the  power  to  make  not  alone  those  laws 
that  are  constitutional,  but  even  many  that  are  purely  statu- 
tory, and  have  reserved  to  themselves  the  right  of  approv- 
ing or  rejecting  these.  Truly  a  specific  application  of  the 
principle  that  the  people  should  rule. 

412.  Process  of  forming  a  Constitution  at  the  Present.  — 
The  method  that  is  all  but  universally  used  when  a  state 
wishes  a  new  constitution  is  substantially  as  follows.  The 
legislature  takes  the  initiative  by  passing  a  resolution  call- 
ing a  constitutional  convention.  In  many  of  the  states, 
especially  the  newer  ones,  two-thirds  of  the  members  elected 
to  each  house  are  necessary,  others  require  only  a  majority, 
and  in  twelve  states  there  is  no  constitutional  provision  for 
general  revision.  At  the  next  election  the  voters  signify 
whether  they  favor  a  revision,  and,  provided  they  do,  the 
legislature  passes  a  new  resolution,  in  which  the  number  of 
members  of  the  convention  is  specified,  the  districts  pre- 
scribed, and  the  mode  of  choice  designated.  To  this  con- 
vention are  usually  sent  some  of  the  best  men  of  the  state, 
who  make  an  earnest  effort  to  improve  the  constitution. 
The  new  draft  may  be  declared  in  force  by  the  convention, 
except  in  one-third  of  the  states;  but  is  ordinarily  sub- 
mitted to  the  voters  for  acceptance  or  rejection  as  a  whole, 
though  occasionally  with  extra  clauses  on  such  subjects  as 


Still  later  by 
conventions 
followed  by 
popular 
ratification. 

Bryce,  324- 
328. 

Oberholtzer, 
Referendum, 
103-115. 


Method  used 
in  most 
states. 

Oberholtzer, 
Referendum, 
128-133. 

Appendix  E, 
Table  II. 


348 


The  American  Federal  State 


By  one  or  two 
legislatures 
with  ratifica- 
tion. 

Wilson.  The 

State, 

}§  1101-1107. 

Oberholtzer, 
Referendum, 
150-154- 

Cleveland, 
Democracy, 
114-127. 


Why  fre- 
quent 

changes  are 
necessary. 

Oberholtzer, 
Referendum, 
94-96.    Cf. 
also  ibid., 
133-136- 


suffrage,  prohibition,  or  the  referendum,  upon  which  the 
vote  is  taken  separately.  If  the  constitution  is  approved 
by  a  majority  of  the  persons  voting,  it  supplants  the  one  in 
use.  Some  states  are  unwilling  to  leave  to  their  govern- 
ments discretionary  power  in  calling  these  conventions,  and 
require  revision  at  certain  stated  intervals,  e.g.  New  Hamp- 
shire has  a  new  convention  every  seven  years,  Iowa  every 
ten,  Michigan  every  sixteen.  New  York,  Ohio,  Maryland, 
and  Virginia  every  twenty. 

413.  Amendment  of  the  Constitution.  —  A  great  many  of 
the  changes  in  the  fundamental  law  occur  through  amend- 
ment. Here  we  find  less  uniformity  in  the  methods  of  the 
various  commonwealths.  In  every  case  the  amendment  is 
proposed  by  the  legislatures,  and  separately  ratified  by  the 
people,  before  going  into  effect,  except  in  Delaware. 
Three  of  the  states  ask  only  a  majority  of  those  elected  to 
each  House  before  submission  to  the  voters;  five  require  a 
three-fifths  vote;  nineteen  states  provide  that  two-thirds  of 
each  House  shall  give  their  consent;  while  sixteen,  most 
of  them  older  states,  demand  the  consent  of  two  successive 
legislatures  by  votes  varying  from  a  majority  to  three-fourths 
of  the  members  elected.  When  we  realize  that  very  few  of 
the  states  permit  annual  sessions  of  the  legislature,  we  see 
that  ample  opportunity  is  given  to  thoroughly  discuss  the 
proposed  changes  in  most  cases,  —  an  opportunity  by  no 
means  well  utilized,  for  constitutional  amendments  usually 
receive  at  the  hands  of  the  public  a  lack  of  consideration 
and  attention  that  is  unfortunate. 

414.  Are  Constitutional  Changes  too  frequent  ?  —  Notwith- 
standing the  restrictions  placed  upon  alteration  in  the  con- 
stitutions, there  is  a  widespread  belief  that  changes  are  too 
frequent  and  too  radical.  Is  that  feeling  justified  by  the 
facts?  If  our  standard  of  comparison  is  the  United  States 
Constitution,  the  difference  is  of  course  very  great.  No 
one  of  the  original  thirteen  states  now  has  its  first  constitu- 
tion except  Massachusetts,  which  still  retains  its  constitu- 
tion of  1780,  amended  however  in  thirty-six  particulars. 


The  States:  Constitutions  and  Governments    349 

Fourteen  out  of  a  possible  twenty-three  of  the  states  have 
constitutions  framed  before  the  Civil  War,  only  six  adopted 
new  ones  between  1890  and  1900,  while  fifteen  have  had 
but  one  each.  In  view  of  the  mass  of  material  included 
within  the  present-day  constitution,  revisions  seem  no  more 
frequent  than  is  necessary.  The  defect  is  less  in  the  con- 
tinued changes  than  in  the  excessive  bulkiness  of  these 
instruments,  which  are  by  no  means  the  outline  of  gov- 
ernment that  the  United  States  Constitution  is. 

415.  The  Contents  of  the  State  Constitutions.  — The  earlier  Frame  of 
constitutions  were  brief.     They  included,  as  a  rule,  a  bill  government 
of  rights,  a  frame  of  government,  and  provisions  for  suffrage,    stitutionai 
and  perhaps  amendment  and  education.     Those  adopted  provisions. 
later  not  only  cover  more  subjects,  but  treat  each  one  at  Wilson,  The 
greater  length,  e.g.  the  new  constitution  of  Louisiana  (1898)   fj^'^'- 
devotes  some  three  thousand  words  to  "  Suffrage  and  Elec- 
tions," giving  minute  directions  about  even  minor  matters.    ^^y^^>  3o6, 

°       °  311-313. 
But  the  most  notable  characteristic  of  the  newer  constitu- 
tions is  the  addition  of  articles  relating  to  corporations,  ,^,J  g   ^g"^' 
local  government,  public  institutions,  water  rights  and  im- 
provement,  public  lands,  taxation,  and  many  others.     As  Cmst'i Limi- 
stated  above,  the  reason  for  this  is  the  popular  desire  to  t^io"^, 
have  all  important  laws  directly  and  personally  approved  ^^ 
by  the  voters. 

416.  The  Bills  of  Rights.  —  It  might  seem  as  though,  with  Historical 
such  constant  surveillance  of  our  governments  by  the  people,  ^"<*  practical 
bills  of  rights  are  unnecessary.      Indeed,   many  persons  the  bills. 
believe  that  they  are  retained  in  the  constitutions  simply  ^    , 

'  ^  •'     Cooley,  tbid., 

because  their  value  was  apparent  in  colonial  times,  and  47.48. 
that  now  they  are  of  little  use.     Many  others  feel  that  they  g     ^ 
still  assure  needed  protection  from  the  encroachments  of  307-311. 
the  government,  and  that  they  act  as  a  restraint  upon  the 
majority  for  the  protection  of  individual  liberty.    We  must 
not  forget  that  the  bill  of  rights  incorporated  in  the  first 
nine  amendments  of  the  national  Constitution  binds  the 
United  States  government  only,  and  does  not  affect  the 
states  in  any  way;  and  it  may  be  well  to  remember  that. 


350 


The  American  Federal  State 


The  central 
government. 


The  local 
govern- 
ments. 


Similarity  of 
the  two 
houses. 


Numbers 
and  terms. 

Bryce,  331, 
332,  336. 


according  to  the  best  interpretation  of  state  law,  the  legis- 
latures of  the  commonwealths  are  held  to  have  unlimited 
legislative  power  unless  prohibited  by  the  national  or  state 
constitution.  In  consideration  of  these  facts,  the  useless- 
ness  of  the  bills  of  rights  must  certainly  be  clearly  proved 
before  we  should  accept  the  statement  as  true. 

Some  idea  of  the  character  of  the  provisions  in  most  of  the  states 
will  be  given  in  chapter  XXIV,  Part  III. 

417.  The  State  Government.  —  All  of  the  states  have 
central  governments  and  local  governments.  The  state 
government  always  consists  of  the  three  departments  —  the 
executive,  legislative,  and  judicial.  The  executive  depart- 
ment is  made  up  of  the  governor  and  of  other  administra- 
tive officials.  The  legislatures  are  invariably  of  two  houses. 
There  is  always  at  least  one  state  court  besides  the  minor 
ones. 

Most  commonwealths  have  the  two  units  of  local  govern- 
ment—  the  county  and  the  township  —  in  addition  to  the 
municipalities.  None  of  these  are  true  self-governing 
bodies,  but  are  convenient  territorial  subdivisions. of  the 
state  for  the  administration  of  state  law  supplemented  by 
such  by-laws  and  ordinances  as  each  locality  requires. 

418.  The  Legislature ;  Composition  of  the  Senate.  —  Both 
houses  of  the  legislatures  are  chosen  by  the  qualified  voters 
at  regular  elections.  The  upper  house  is  different  from 
the  lower  principally  in  its  greater  length  of  tenure,  its 
smaller  number  of  members,  and  its  special  duties. 

The  senates,  as  all  of  the  upper  houses  are  called,  vary 
in  number  of  members  from  fifteen  in  Nevada  to  sixty- 
three  in  Minnesota,  the  average  being  about  thirty.  The 
term  of  office  in  about  two-thirds  of  the  states  is  four  years, 
in  New  Jersey  it  is  three,  in  Massachusetts  and  Rhode  Island 
one,  and  in  the  others  two  years.  Sixteen  states  have  the 
same  term  for  senators  that  they  have  for  representatives. 
In  most  of  the  states  all  the  senators  are  not  elected  at  the 
same  time,  so  that  the  Senate  is  a  continuous  body.     As  a 


The  States:  Constitutions  and  Governments    351 

rule,  there  are  qualifications  covering  age,  residence,  and 
United  States  citizenship,  and  until  1897  there  were  prop- 
erty qualifications  as  well  in  little  Delaware. 

419.  The  Lower  House ;  Composition.  — The  lower  houses  Numbers 
have  about  three  times  as  many  members  as  the  senates.   ^"   terms. 
At  present  Nevada  has  the  smallest  house  of  represenla-   Hinsdale, 
tives,   30,  New  Hampshire  the  largest,  398.     The  terms 

vary  from  one  year  in  four  of  the  original  thirteen  states 
to  four  years  in  Louisiana  and  Mississippi,  all  of  the  others 
electing  for  two  years.  The  qualifications  for  members  are 
much  the  same  as  those  of  senators,  except  that  the  age 
limits  are  lower  and  the  periods  of  residence  shorter. 

In  practically  all  of  the  states,  senators  and  representatives  Election  by 
are  elected  from  districts  equal  in  number  to  the  members  '^'^'"'='^- 
of  the  respective  houses.     Illinois  not  only  permits  three  Bryce,  33a- 
representatives  to  be  elected  in  each  district,  but  provides 
for  minority  representation.     In  many  of  the  constitutions 
we  find  the  requirement  that  the  members  shall  be  residents 
of  the  districts  for  which  they  are  chosen,  and  custom  does 
not  allow  a  non-resident  anywhere  in  the  United  States  to 
run  as  a  candidate  for  the  legislatures. 

420.  Legislative  Sessions.  — At  the  time  the  national  Con-   Biennial  ses- 
stitution  was  adopted  (1787),  long  terms  for  members  and  j.'°"^,^".^ 
short  sessions  for  the  legislatures  were  the  exception.     It  is  the  rule, 
exactly  the  reverse  now.     Those  states  that  hold  annual   oberhoitier 
election  for  representatives  almost  of  necessity  have  annual  Referendum, 
sessions  of  the  legislatures;  but  they  are  the  only  ones  ^^  *'  ^" 
except  South  Carolina  and  Georgia.     All  the  others  think 

that  it  icgislators  come  together  regularly  every  two  years, 
it  is  often  enough.  But  most  go  farther  by  limiting  the 
length  of  the  session  to  sixty  days,  usually,  or  in  three  cases 
to  forty  days.  Extra  sessions  may  be  called  by  the  governor 
at  his  own  wish  or  when  requested  to  do  so  by  a  certain 
proportion  of  the  members.  He  may  even  adjourn  the 
legislature  if  they  cannot  agree  upon  a  day. 

421.  Legislative  Regulations. — Many  of  the  regulations 
for  the  state    legislatures   remind   us   of  those   covering 


352 


The  American  Federal  State 


Constitu- 
tional rules 
for  the 
houses. 

Cooley, 
Consfl 
Limitations, 
158-163. 

Cleveland, 

Democracy, 

312-320. 

Stimson, 
Amer. 

Statute  Law, 
§§  270-278. 

The  course 
of  a  bill 


Contained  in 
constitution 
of  the  state. 

Bryce, 
339-34I. 


Three  classes 
of  restric- 
tions. 

Laws  made 
by  constitu- 
tional con- 
ventions. 

Wilson.  The 

State, 

}§  1096-1098. 

Oberholtzer, 
Referendum, 
83-86. 


similar  subjects  in  national  affairs  (§  258).  Among  these 
are  the  quorum,  which  is  a  majority  of  the  members  of  each 
house  in  all  but  a  few  states,  freedom  of  speech  in  the 
legislatures,  the  exemption  from  arrest  during  the  session, 
the  expulsion  of  members  by  a  two-thirds  vote,  adjourn- 
ment, the  keeping  of  journals,  the  reading  of  bills,  the  judg- 
ing of  elections  of  members,  rules  regarding  compensation 
and  restricting  the  holding  of  other  offices  by  legislators. 

The  course  of  legislation  is  almost  identical  with  that  of 
Congress  (§§  260-263).  The  committee  system  is  univer- 
sal, and  in  some  states  no  bill  can  be  brought  to  its  third 
reading  without  having  first  been  committed;  while  in  a 
majority  of  the  states  at  least  one-half  of  the  whole  number 
elected  to  each  house  must  vote  for  a  measure  before  it  is 
sent  to  the  governor. 

422.  Limitations  and  Prohibitions  on  Legislation.  —  The 
state  sphere  of  action  has  been  defined  in  chapter  IX.  It 
is  said  to  include  all  of  the  powers  of  government  not  given 
to  the  United  States  government  exclusively  or  denied  to 
the  states  by  the  national  Constitution.  Yet  no  state  allows 
its  legislature  to  exercise  all  of  these  powers.  Every  state 
constitution  contains  prohibitions  and  limitations  which 
restrict  the  legislatures;  but  unless  a  legislature  is  thus 
restrained  by  either  the  United  States  or  the  state  constitu- 
tion, it  has  full  power  to  pass  any  law  it  pleases. 

The  restrictions  upon  the  legislatures  may  be  placed  in 
one  of  three  classes.  I.  Powers  legislative  in  character 
denied  to  the  legislature  because  assumed  by  the  constitu- 
tional convention,  subject  to  the  veto  of  the  people  at  the 
polls.  There  are  embodied  in  every  constitution  a  mul- 
titude of  articles  which  are  not  properly  constitutional, 
i.e.  are  not  essential  to  the  organization  of  the  government, 
but  are  purely  statutory,  and  are  placed  in  the  constitutions 
simply  because  the  people  consider  them  of  such  impor- 
tance that  they  should  not  be  left  for  each  legislature  to 
alter  as  it  pleases.  Because  they  are  in  the  constitutions 
they  can  of  course  be  changed  only  in  the  ways  provided 


The  States:  Constitutions  and  Governments    353 

for  constitutional  amendment  or  general  revision.  As 
stated  above,  some  of  these  subjects  covered  more  or  less 
fully  in  the  constitution  are  suffrage  and  taxation,  debt 
limitations,  municipal,  county,  banking,  insurance,  rail- 
way, and  other  corporations,  public  lands,  education, 
militia  and  homestead  exemption. 

423.  Powers  not  exercised  by  the  Legislature  or  the  Con-  Prohibitions 

vention.  —  II.  The  second  class  of   limitations   includes  'P<=°'"^'*^- 

tions. 

those  powers  prohibited  to  the  legislature,  but  whose  exer- 
cise is  not  assumed  by  the  convention.  Among  the  most 
common  of  these  are  the  prohibitions  of  lotteries,  denial 
of  the  right  to  give  aid  to  religious  bodies  or  schools,  to 
hold  stock  in  railroad  and  other  corporations,  or  appro- 
priate money  for  the  same.  Many  constitutions  repeat  the 
prohibitions  placed  by  the  United  States  Constitution  upon 
the  states,  as,  e.g.  those  relating  to  bills  of  attainder,  ex  post 
facto  laws,  titles  of  nobility,  slavery,  suffrage,  etc.  Most 
of  the  states  in  their  bills  of  rights  place  limitations  upon 
the  commonwealth  governments  similar  to  those  contained 
in  the  first  nine  amendments  to  the  Constitution  for  the 
national  government. 

424.  Limitations  upon  Local  and  Special  Legislation.  —  Long  lift  of 
III.  There  are,  in  addition,  numerous  limitations  upon  the  subjects  for 

which  1a  ws 

legislature  in  the  exercise  of  its  powers,     (i)  The  most  must  be 
important  of  these  deals  with  the  passing  of  local  or  special  general, 
laws.     Every  modern  constitution  enumerates  a  large  num-  Cleveland, 
ber  of  subjects  for  which  the  legislature  can  make  only  l^'^^^<^<y> 
general  laws.     These  general  laws  may  then  be  applied  by 
the  courts  or  the  administrative  officials  to  particular  cases, 
if  they  are  capable  of  application  at  all.     No  special  laws 
shall  be  made  in  most  of  the  states  relating  to  the  granting 
of  divorces,  changing  the  names  of  persons,  for  creating 
private  corporations,  changing  the  law  of  descent,  giving 
special  privileges  to  corporations,  and  many  others.    Local 
laws  are  prohibited  which  would  permit  incorporation  of 
some  particular  town  and  no  others,  laying  out  of  certain 
roads  or  bridges,  altering  county  or  township  lines,  etc.  — 


354 


The  American  Federal  State 


Sessions  and 
bills. 

Cooley, 
Const' I  Limi- 
tations, 
164-168. 


Bills  relating 
to  revenue, 
appropria- 
tions and 
indebted- 
ness. 

Cleveland, 
Democracy, 
321-324,  343- 
345- 


Vast  extent 
of  legislative 
field. 

Bryce,  371- 
373. 


all  these  matters  being  cared  for  under  laws  that  apply 
equally  to  all  parts  of  the  state. 

425.  Legislative  Procedure.  —  (2)  A  second  set  of  limita- 
tions deals  with  legislative  procedure.  Not  only  are  the 
sessions  of  a  definite  duration,  except  in  a  few  of  the  older 
states,  but  often  no  bill  may  be  introduced  within  a  certain 
number  of  days  of  final  adjournment.  Usually  no  laws  can 
be  passed  except  by  bill,  whose  contents  are  expressed  in 
the  title  and  cover  but  one  subject.  The  bill  must  be  read 
three  times,  on  different  days,  except  for  extraordinary 
occasions,  and  on  the  final  vote  must,  in  most  of  the  states, 
be  approved  by  a  majority  of  those  elected  to  each  house. 
In  all  but  three  states  bills  are  subject  to  the  veto  of  the 
governor,  and  when  not  approved  by  that  official  must 
receive  in  each  house  votes  varying  from  an  ordinary 
majority  in  five  states  to  two-thirds  of  the  members  elected 
in  fourteen. 

426.  Financial  Regulations.  —  (3)  A  third  set  of  limita- 
tions lies  in  the  domain  of  finance.  Several  commonwealths 
still  retain  the  once  universal  and  necessary  provision  that 
all  bills  relating  to  revenue  should  originate  in  the  lower 
house,  but  nearly  half  now  give  the  senates  equal  rights 
with  its  fellow-chamber.  The  taxes  levied  by  law  must  be 
uniform,  and  no  person  is  to  be  exempt  from  taxation  unless 
made  so  by  the  constitution.  Appropriation  bills,  except 
the  general  one,  are  to  be  confined  to  a  single  subject,  and 
in  the  general  bills  the  governor  may  often  veto  particular 
items.  Frequently  the  legislature  cannot  incur  any  debt 
nor  permit  a  public  corporation  to  incur  any.  Some  states, 
however,  permit  debts  not  exceeding  a  certain  amount,  if 
provision  is  made  for  the  payment  of  these  within  definite 
periods. 

427.  Powers  of  the  State  Legislatures.  —  Although  this 
enumeration  of  some  of  the  powers  that  the  legislature 
cannot  use,  or  can  use  only  in  certain  ways,  may  mislead 
us  into  thinking  that  the  legislatures  do  very  little  after  all, 
we  shall  be  convinced  that  this  is  not  the  case  if  we  do 


The  States:  Constitutions  and  Governments    355 

no  more  than  examine  the  laws  passed  at  a  single  brief  ses-  Cooiey, 
Bion.     The  number  of  the  laws  and  the  variety  of  the  topics   Const' i  Umt- 

^  tattons, 

treated  are  alike  surprising,  and  for  most  of  these  the   103-106. 
legislature  does  just  as  it  pleases.    As  we  have  already  seen, 
almost  the  whole  domain  of  private  and  of  criminal  law 
is  under  its  control,  so  that  the  individual  is  continually 
affected  by  the  action  or  inaction  of  the  legislatures. 

428.  Special  Powers  of  the  Two  Houses.  —  The  special  Similarity  to 
powers  in  the  states  correspond,  to  some  extent,  to  those  *^°^^  of Con- 
of  the  two  chambers  of  Congress,  though  less  extensive. 

The  impeachment  of  public  officials  is  made  by  the  lower  —J^^^ 
house,  and  the  trial  occurs  before  the  state  senates,  con- 
viction following  usually  a  two-thirds  vote.  The  senates 
also  have  more  power  in  appointing  and  in  confirming 
appointments  than  the  other  branch  of  the  legislature. 
The  lower  house,  however,  still  retains  the  right  to  intro- 
duce bills  to  raise  revenue  in  a  majority  of  the  common- 
wealths. In  one  state  (Vermont)  only  the  upper  house 
can  propose  amendments  to  the  state  constitution,  and  in 
another  (Connecticut)  the  house  of  representatives  has 
that  right. 

429.  Defects  of  the  State  Legislatures.  —  The  law-making  it  is  claimed 
bodies  of  our  commonwealths  impress  many  critics  as  one  ^^^ 

of  the  least  successful  parts  of  our  political  system. 

(i)  It  is  claimed,  often  without  just  cause,  that  they  are   legislators 
composed  of  inefficient  men,  and,  consequently,   fail  to  ^''^  mcom- 
command  respect.     Many  reasons  are  given  for  this  state 
of  affairs,  no  one  of  which  satisfactorily  explains  it.     The  ,i^^"'^^^~ 
mode  of  electing  residents  by  districts  has  been  assigned  as 
the  chief  cause.    The  absolute  control  of  states  by  political  37^386, 
machines  is  often  held  responsible  for  it.     Popular  indiffer-  ^^  roosc- 
ence  to  state  government,  due  to  ignorance  of  the  impor-  veit,  Amer. 
tance  of  state  duties,  also  plays  some  part.     But  hidden  ^^'^^^^  ^^9- 
though  the  sources  of  the  evil  may  be,  the  results  of  popu- 
lar distrust  in  the  legislatures  are  made  plain  in  the  general 
tendency  to  consider  the  law-making  bodies  a  necessary 
svil.     Many  important  duties  have  been  given  to  the  con- 


356 


The  American  Federal  State 


and  corrupt. 

Roosevelt, 
ibid.,  125- 
14a. 


Senatorial 
elections  and 
legislation. 

Ill-advised 
and  ill-di- 
gested laws. 


Decentraliza- 
tion of  the 
administra- 
tion. 

Bryce,  367- 
370  (disad- 
vantages). 


stitutional  conventions,  the  sessions  have  been  made  less 
frequent  and  are  required  to  be  short,  and  a  constantly  in- 
creasing field  of  legislation  is  being  denied  them. 

(2)  Charges  of  corruption  are  by  no  means  unknown;  the 
influence  of  lobbyists,  especially  through  the  use  of  money 
being  considered  more  potent  than  public  opinion  in  so 
many  cases.  On  account  of  the  necessity  of  making  laws 
affecting  corporations,  the  legislatures  are  exposed  to  great 
temptations,  which  they  may  not  be  able  to  resist. 

(3)  Though  they  have  such  important  duties  to  perform 
for  the  state,  the  members  are  often  chosen  on  account  of 
personal  preferences  for  senatorial  candidates. 

(4)  Changes  in  the  laws  are  made  more  frequently  than 
the  conditions  demand,  i.e.  there  is  too  much  legislation. 
The  whole  sphere  of  state  activity  is  of  such  a  character 
that  any  change  in  the  law  interferes  with  many  business  or 
other  operations.  But  instead  of  being  sure  that  every 
change  means  improvement,  the  legislatures  are  constantly 
amending  the  statutes  when  the  alteration  does  more  harm 
than  good. 

Fortunately,  all  of  these  criticisms  do  not  apply  to  any 
one  of  our  state  legislatures.  Of  some  legislatures  no  one 
of  them  is  true.  Certain  it  is  that  they  are  due  quite  as 
much  to  popular  apathy  as  to  any  defect  inherent  in  the 
state  government. 

430.  The  Executive. — The  execution  of  commonwealth 
law  is  left  to  officials,  central  and  local,  very  few  of  whom 
are  under  the  charge  of  a  single  individual  or  responsible 
to  one  person.  In  other  words,  the  administration  of  state 
law  is  very  much  decentralized.  The  chief  executive 
official  is  the  governor,  who  is  aided  by  colleagues,  either 
elected  by  the  people  or  by  the  legislature,  and  in  either 
case  not  responsible  to  the  governor.  There  are  often  state 
boards  of  education,  health,  police,  railroads,  equaliza- 
tion, etc.,  sometimes  under  the  control  of  the  governor, 
but  more  often  responsible  to  the  legislature.  Most  of  the 
actual  execution  and  administration  of  law  is  done  by  the 


The  States:  Constitutions  and  Governments   357 

county,  town,  and  municipal  officers,  who  are  chosen  in 
these  local  districts  and,  as  a  rule,  are  not  even  subject  to 
supervision  by  the  state  executive. 

431.   The  Powers  of  the  Governor.  —  It  will  readily  be  Comparison 
appreciated   that  the  governor   of  the  commonwealth  is  of  governor 

£LTici  Prcsi* 

a  very  different  person  from  the  President  of  the  United  ^jg^, 
States.  As  shown  in  chapter  XIV,  the  latter  is  very  power- 
ful and  is  the  real  executive  head  of  the  United  States 
government,  because  the  officials  who  administer  the  na- 
tional laws  are  directly  responsible  to  him ;  whereas  the 
governor  is  only  nominally  the  chief  executive  of  his  state, 
since  he  is  obliged  to  share  his  powers  with  so  many  state 
and  local  officials,  some  of  whom  may,  however,  in  the  not 
distant  future  be  brought  under  the  control  of  the  governor 
for  the  sake  of  executive  efficiency. 

Yet  the  governor  is  by  no  means  an  insignificant  person-  Supervisory, 
age.     He  has  general  oversight,  if  not  control,  of  the  state   appo'^^ive. 

•  /v-    •    1  1    t_         J  Tx       ,  ,    military,  and 

executive  officials  and  boards.     He  has  some  power  of   legislative 

appointment  and  some,  though  less,  of  removal.     He  has  powers. 

pretty  full  power  to  grant  reprieves  and  pardons.     He  is  Wilson,  The 

commander-in-chief    of    the    state    military    forces  —  the   ff^^'' 

•'  J}  1183-1194. 

militia  —  except  when  they  are  called  out  by  the  Presi- 
dent, and  may  put  down  riots,  insurrections,  and  disorder  ^^'  ^*~ 
of  all  kinds.     If  the  state  is  actually  invaded,  he  may  raise 
an  army.     Like  the  President,  he  sends  a  message  to  the   comt'i  Umi- 
legislature  at  the  beginning  of  each  session.    If  the  houses  iatiom, 
fail  to  agree,  he  may  adjourn  them,  in  most  states,  and  ^  ^~^  ^' 
call  special  sessions  when  necessary,  either  with  or  without  Goodnoj^ 
requests  from  legislators.    By  far  the  most  important  power  ministrative 
is  that  of  vetoing  bills.     Only  three  states,  Rhode  Island,   ^'^'  '• 
Ohio,  and  North  Carolina,  withhold  this  from  their  gov- 
ernors; although  Vermont,  Connecticut,  New  Jersey,  and 
Indiana  require  no  greater  vote  to  pass  a  bill  the  second 
than  the  first  time.     The  governor  usually  has  ten  days, 
excluding  Sundays  and  holidays,  in  which  to  sign  a  meas- 
ure, and  in  many  states  has  the  pocket  veto.     In  nearly 
one-half  of  the  states  he  may  veto  particular  items  in  appro- 


358 


The  American  Federal  State 


Executive 
councils. 


The  gov- 
ernor's col- 
leagues. 

Wilson,  The 

State, 

{§  1195-1208. 


priation  bills.  His  legislative  powers  are,  therefore,  of  no 
inconsiderable  value. 

In  Maine,  Vermont,  and  Massachusetts  the  governor 
shares  his  powers  with  the  executive  council,  though  the  two 
together  usually  have  some  duties  given  in  other  states  to 
separate  boards  and  heads  of  departments. 

432.  Central  Executive  Officials.  —  In  all  of  the  com- 
monwealths there  are  secretaries  of  state  who  look  after  the 
state  seal,  the  records  of  the  legislature  and  to  other  de- 
partments, take  charge  of  election  returns,  and,  in  general, 
act  as  state  clerks.  All  also  have  treasurers,  who  have  the 
keeping  of  the  funds  raised  by  the  legislature,  paying  them 
out  on  demands  made  out  by  the  auditor  or  controller,  and 
reporting  to  the  legislature.  They  are  of  course  under 
heavy  bond  to  faithfully  perform  these  duties.  The  con- 
trollers have  a  general  supervision  of  the  finances  of  the 
state,  and  recommend  to  the  legislatures  the  amount  of 
money  needed  for  various  objects,  to  which  the  legisla- 
tures, on  the  whole,  pay  less  attention  than  Congress  to 
similar  estimates  of  the  national  Secretary  of  the  Treasury 
(§  295).  They  may  have  some  power  to  audit  the  accounts 
of  the  local  officials  who  use  a  portion  of  the  state's  money, 
and  can  possibly  have  some  influence  over  the  tax  system 
in  use.  The  attorney-generals  are  the  legal  advisors  of  the 
legislature  and  other  state  officials,  and  in  that  capacity  may 
be  aided  by  the  state  supreme  court.  Whenever  the  state 
has  business  in  the  courts,  the  attorney-general  or  his  as- 
sistants represent  it,  or  act  as  public  prosecutors.  Other 
officials,  at  times  elected,  but  usually  appointed,  are  the 
superintendent  of  schools,  the  state  engineer  and  surveyor, 
and  the  superintendent  of  public  works.  The  first  of  these 
is  the  head  of  the  public  schools  of  the  state  and  has  gen- 
eral supervision,  usually  under  a  state  board  of  education. 
Where,  as  in  a  few  states,  he  has  power  to  hear  com- 
plaints and  remove  unsatisfactory  local  superintendents, 
he  wields  an  immense  influence.  The  importance  of 
the  other  positions  depends  largely  upon  the  extent  to 


istrative 
boards. 


The  States:  Constitutions  and  Governments    359 

which  canals,  irrigating  systems,  and  public  buildings  are 
necessary. 

In  charge  of  various  departments  are  superintendents,  state  admin- 
boards,  or  both,  chosen  by  legislatures  or  by  the  governors 
with  or  without  the  consent  of  the  senate.  Most  of  these 
have  done  little  because  not  clothed  with  sufficient  power, 
but  there  is  every  indication  that  in  a  few  decades  they 
will  be  able  to  supervise  or  control  or  actually  administer 
many  matters  now  entirely  attended  to  by  local  officials. 
Among  these  are  the  departments  of  agriculture,  chiefly 
taken  up  with  stock  inspection;  of  health;  of  education 
(§§  445-450) ;  of  labor,  concerned  with  gathering  statistics 
and  recommending  reform;  sand  of  railroads  (§§  612,  614). 
The  state  boards  of  charities  and  correction  have  duties 
of  the  first  importance  (§§  458-462,  483-486),  though  many 
things  that  would  naturally  fall  to  them  are  still  assigned  to 
separate  boards. 

433.  Terms  and  Qualifications  of  Executive  Officials.  —  Elections 
The  governors,  secretaries  of  state,  controllers,  and  other  ^"«^  require- 
elected  officials  are  chosen  by  the  electors  of  the  whole 

state  for  terms  usually  of  two  or  four  years,  occasionally  ^T^^°\^ 

for  one  or  three  years.    Almost  all  the  states  prescribe  cer-  vte  Law,  i, 

tain  minimum  qualifications,   the  most  severe  of  which   ^^  ^^'  ^3. 

207. 308. 
apply  to  the  governor  and  the  lieutenant-governor.     They 

cover  citizenship,  age,  and  residence  in  the  state,  always 
for  these  two  and  ordinarily  for  the  treasurer,  attorney- 
general,  and  the  others.  In  a  few  of  the  commonwealths 
these  and  all  other  state  or  local  officials  are  debarred  from 
holding  office  if  they  ever  fought  a  duel;  and  once  in  a 
while  we  run  across  a  provision  like  that  of  North  Carolina, 
where  persons  denying  "the  being  of  Almighty  God"  are 
also  disqualified.  All  of  these  central  executive  officials 
are  removable  either  by  a  two-thirds  vote  of  the  legislature 
or  by  impeachment 'by  the  lower  house  and  trial  in  the 
senate.  . 

434.  The  State  Judiciary. — Very  few  of  the  cases  that  of  state 
come  up  for  trial  or  adjudication  within  the  United  States  courts. 


36o 


The  American  Federal  State 


Cooley, 
Const' I  Limi- 
tations, 206, 
909,  and 
chap.  IV. 


System  com- 
monly used. 

Wilson,  The 

State, 

$$  1147-1167. 

Stimson, 
Amer.  Stat- 
ute Law,  I, 
p.  114 
(table). 


Special 
courts. 


are  decided  by  national  courts.  The  vast  majority  are  not 
only  begun  in  state  courts,  but  are  decided  by  them  with- 
out appeal  to  the  United  States  tribunal.  Unless  a  case 
involves  national  law,  or  for  other  reasons  comes  within  the 
jurisdiction  of  the  national  courts,  the  final  decision 
always  rests  with  the  proper  court  in  the  state,  and  is 
never  carried  beyond  the  highest  state  court.  The  impor- 
tance of  the  work  performed  by  the  commonwealth  judi- 
ciary is  therefore  evident,  and  the  need  of  capable  and 
enlightened  judges  fully  informed  concerning  the  inter- 
pretation of  law  in  all  the  states  is  readily  seen. 

435.  State  Courts.  —  It  is  impossible  to  describe  a  sys- 
tem of  courts  which  would  apply  to  all  of  the  states,  but  the 
systems  tend  to  approach  a  certain  type.  There  is  always 
a  highest  state  court,  usually  called  supreme,  the  judges  of 
which  represent  the  whole  state,  i.e.  there  is  but  one  court. 
It  always  has  appellate  jurisdiction  from  the  court  next 
lower,  and  sometimes  has  original  jurisdiction  in  a  very 
few  cases.  Its  decision  is  final  on  all  points  connected 
with  state  law.  Below  this  court  are  those  usually  called 
circuit,  district,  or  superior,  which  are  equal  in  number 
to  districts  into  which  the  state  is  divided.  These  districts 
may  be  as  small  as  the  counties,  or  each  may  comprise 
many  counties.  The  courts  have  both  original  and  appel- 
late jurisdiction.  If  the  district  is  large,  there  are  county 
courts  in  addition.  The  lowest  courts  for  the  rural  sec- 
tions are  those  usually  held  by  the  justices  of  the  peace, 
and  for  the  cities  are  the  municipal  courts.  They  have  of 
course  only  original  jurisdiction  covering,  however,  minor 
civil  and  criminal  cases. 

Besides  these  courts  there  may  be  special  ones  for  the 
consideration  of  equity  cases,  although  in  most  states  cases 
in  equity  are  decided  by  some  of  the  regular  courts,  and  in 
several  states  any  court  may  have  jurisdiction  over  equity 
the  same  as  law  cases.  Some  states  have  additional  courts 
which  look  after  wills  and  similar  matters,  and  are  called 
probate  courts. 


The  States:  Constitutions  and  Governments    361 

436.  Selection  of  Judges.  — Attention  was  called  (§  185)  Appointment 
to  the  fact  that  a  hundred  years  ago  all  judges  were  ap-  ^°^  election, 
pointed  by  the  central  government  of  the  states.     While  Bryce. 
popular  election  is  quite  prevalent,  it  has  never  entirely  ^^3Si« 
supplanted  the  older  custom.     In  a  very  few  of  the  Eastern  Stimson. 

^^  ^  statute  Law, 

or  Southern  states  none  of   the  judges   are  elected.     In  i,  560. 
Delaware  all  are  appointed  by  the  governor,  and  in  three  Appendix  G 
of  the  New  England  states  by  the  governor  and  council.   Table  III. 
Many  of  the  higher  judges  are  appointed  by  the  legislatures. 
Most  of  the  inferior  judicial  officials  are  elected  by  the 
people  of  the  district  over  which  they  preside,  but  in  seven 
states  bordering  on  the  Atlantic  the  justices  of  the  peace 
are  still  appointed  by  the  governor. 

437.  Judges :  Term  and  Qualification.  —  As  a  rule,  the  Tenn  de- 
term  of  office  depends  on  the  position  of  the  court  in  the  ^"itfon^f" 
state  system,  the  higher  judges  being  chosen  for  a  longer  the  court 
term  than  the  lower  ones.  The  justices  of  the  peace  usu-  stimson. 
ally  hold  office  for  two  or  four  years,  the  circuit  judges  statute  Law, 
for  four  or  six  years,  and  the  supreme  judges  average  from  '^^  ^  *' 
eight  to  ten  years.     With  notable  exceptions  the  terms  are 

longer  in  the  older  states. 

Requirements  are  sometimes  made  that  judges  shall  be 
of  a  certain  minimum  age,  and  have  been  citizens  and 
residents  for  a  definite  period.  There  are  no  property 
qualifications,  but  often  tests  of  legal  fitness. 


QUESTIONS  AND   REFERENCES 
The  Constitutionfl  (§§  408,  409) 

1.  Are  there  at  present  any  evidences  of  state  sovereignty  ?  If  so, 
name  a  few. 

2.  What  are  the  main  differences  between  a  state  of  the  American 
Union  and  one  of  the  Australian  federation  ?  between  a  state  and  a 
province  of  British  America  ? 

3.  Is  it  true  that  the  South  has  made  less  political  progress  than 
other  sections  settled  at  the  same  time  ?  (Consult  Hinsdale,  p.  259, 
Appendices  E,  F,  G.) 


362  The  American  Federal  State 

i.  What  proportion  of  the  population  of  the  United  States  is  foreign 
born  ?  of  foreign  parentage  ?  Of  the  native  born,  what  proportion 
still  reside  in  the  state  of  nativity  ?  Answer  all  of  these  questions  for 
your  own  state.  From  what  other  state  did  the  largest  proportion  of 
the  people  in  yours  come?  Compare  your  state  with  that  one  in  regard 
to  laws  and  institutions  in  general  and  in  regard  to  the  subjects  con- 
sidered below  in  particular.     (United  States  Census  Reports.) 


The  Constitutiona  (§§  410-416) 

a.  For  the  work  of  some  of  the  latest  constitutional  conventions  see 
Thorpe,  "  Recent  Constitution-making  in  the  United  States,"  in  A.  A.  A., 
II  (1 891),  145  et  seq.  (North  Dakota,  South  Dakota,  Montana,  and 
Washington) ;  R.  of  R,,  on  "  A  New  Constitution  for  New  York,"  IX 
(1894),  290-295. 

1.  Does  popular  cooperation  in  the  making  of  constitutions  or  their 
amendments  result  in  better  constitutions  ?  What  are  the  advantages 
and  disadvantages  of  popular  ratification  ? 

2.  Will  the  constitutions,  in  all  probability,  become  briefer  or  fuller  ? 
If  the  present  fulness  is  a  defect,  how  can  it  be  avoided  ?  Would  you 
advocate  making  amendment  more  difficult,  for  example,  half  as  much 
so  as  that  of  the  United  States  Constitution  ?  (Cf.  Oberholtzer,  Ref 
erendum,  94-96.) 

3.  Indicate  what  subjects,  if  any,  you  would  drop  from  the  present 
Constitution,  or  in  what  way  the  articles  referring  to  these  subjects 
should  be  altered. 

(For  answers  to  i-ii  consult  Appendix  E.) 

i.  What  sections  or  states  adopted  popular  ratification  the  earliest  ? 
What  section  clung  to  the  old  method  the  longest  ?  Which  state  has 
adopted  the  most  constitutions  ?  Which  ones  never  had  but  one 
each? 

ii.  Where  does  the  method  of  requiring  sanction  of  two  successive 
legislatures  to  amendments  principally  prevail  ?  Is  that  method  older 
or  more  modern  than  the  two-thirds  vote  ?  Prove  from  Appendix  E, 
Table  II.  How  many  state  constitutions  require  that  a  new  constitu- 
tion shall  be  submitted  to  popular  vote  ?  Arc  these  states  principally 
in  the  East,  South,  or  West  ? 

iii.  What  states  have  apparently  the  shortest  constitutions  ?  What 
ones  the  longest  ones  ?  Does  the  statement  hold  good  that  "  the 
earlier  constitutions  were  brief — those  adopted  later  not  only  cover 
more  subjects,  but  treat  each  one  at  greater  length  "  ? 


The  States:  Constitutions  and  Governments    363 

(For  answers  to  iv-vi  use  your  state  constitution  and  state  history.) 

iv.  How  many  constitutions  has  your  state  adopted,  and  in  what 
years  ?  Which  ones,  if  any,  were  declared  in  force  without  popular 
ratification  ?  What  was  the  popular  vote  on  each  ?  Have  any  pro- 
posed constitutions  ever  been  rejected  ? 

V.  How  is  your  constitution  amended  ?  Are  there  any  limitations 
upon  the  number  of  amendments  proposed  at  one  time  or  the  fre- 
quency of  amendment  ?  How  many  amendments  have  been  adopted 
for  the  present  constitution  ?  To  what  do  they  refer  ?  Learn,  if 
possible,  how  many  have  been  proposed  during  the  last  ten  years, 
and  how  many  of  them  failed  to  be  ratified.  If  you  can,  get  the 
vote  on  those  last  submitted,  and  find  out  why  they  were  accepted  or 
rejected. 

vi.  Make  a  list  of  the  important  statutes  in  your  constitution.  Read 
over  each  one  carefully.  Do  you  believe  it  would  be  better  to  remove 
any  or  all  ? 

The  LeglBlatureB  (§§  417-429) 

a.  Different  views  of  the  state  legislatures  are  presented  by  Story, 
"The  American  Legislature,"  in  Amer.  Law  R.,  XXVHI,  683-708; 
Bridgman,  "  Legislatures  :  a  Defence  and  a  Criticism,"  Amer.  Jol. 
Pol.,  V,  598  et  seq.;  Roosevelt,  "  Phases  of  State  Legislation,"  "The 
Albany  Legislature,"  in  Century  (Jan.  1885);  F.  C,  Lowell,  "Legisla- 
tive Shortcomings,"  At.  Mo.,  LXXIX  (1897),  366-377  ;  Bradford, 
"Reform  of  State  Government,"  in  A.  A.  A.,  IV  (1894),  838  ef 
seq. 

1.  What  is  the  difference  in  power,  influence,  and  public  confidence 
between  the  legislature  of  one  hundred  years  ago  and  that  of  to-day  ? 
Account,  as  satisfactorily  as  possible,  for  the  change. 

2.  Why  are  better  men  selected  for  constitutional  conventions  than 
for  legislatures  ?  Is  there  any  way  of  procuring  just  as  good  men  for 
the  legislatures  ?     If  not,  why  not  ?    If  so,  how  ? 

3.  What  is  the  most  satisfactory  way  of  electing  state  senators? 
Do  you  advocate  residence  as  an  absolutely  necessary  qualification  of 
legislators  ?  Do  you  believe  better  results  would  be  obtained  to  choose 
members  of  the  lower  house  from  large  districts  on  a  general  ticket, 
with  proportional  representation  ? 

4.  Criticise  carefully  the  defects  mentioned  in  §  429.  Which  one 
has  had  most  to  do  with  the  deterioration  of  the  legislatures  ?  Does 
any  other  besides  those  mentioned  appeal  to  you  as  worthy  of  con- 
sideration ? 


364  The  American  Federal  State 

(On  i-ii  consult  Appendix  G,  Table  II.) 

i.  Where  are  the  states  that  hold  annual  sessions  ?  Have  any  of 
these  limitations  upon  the  length  of  the  sessions  ?  Do  they  pay  an- 
nual or  per  diem  salaries  ?  Are  their  legislatures  large  or  small  ? 
What  is  the  most  recent  constitution  that  provides  for  yearly  sessions  ? 

ii.  What  is  the  favorite  ratio  of  membership  in  the  two  houses  ? 
Do  the  states  with  large  houses  have  short  terms  or  vice  versa  ?  How 
many  states  do  not  limit  the  length  of  the  legislative  session  ?  How 
many  of  these  are  west  of  the  Mississippi  River  ? 

(On  iii-vi  consult  your  state  constitution,  political  code,  state  official 
register,  etc.) 

iii.  For  each  house  of  your  legislature  give  membership,  term, 
qualifications,  and  salary  of  members,  how  often  and  in  what  ways 
districts  are  reapportioned. 

iv.  When  are  the  elections  held  ?  When  does  the  legislature 
meet  ?  Are  there  any  limitations  upon  length  of  sessions  or  time 
after  which  no  bills  may  be  introduced  ?  If  so,  what  ?  How  many 
constitute  a  quorum  ?  What  vote  is  necessary  to  pass  a  bill  the  first 
time  ?  over  the  governor's  veto  ? 

V.  What  are  the  general  powers  of  each  house  ?  How  do  they 
compare  with  those  of  the  United  States  Senate  and  House  of  Rep- 
resentatives ?  Which  of  the  legislative  regulations  mentioned  in 
§  421  apply  to  your  state  ?  What  legislative  power  is  the  legislature 
expressly  forbidden  to  exercise  by  the  constitution  ?  Give  the  most 
important  limitations  upon  special  legislation ;  upon  legislative  pro- 
cedure;  upon  the  use  of  money. 

vi.  In  what  senatorial  and  assembly  districts  do  you  live  ?  How 
do  they  compare  with  other  districts  in  your  vicinity  in  population  ? 
in  area  ?  Who  are  your  present  representatives  in  the  legislature  ? 
How  long  have  they  served  in  that  capacity  ?  What  is  the  political 
complexion  of  the  legislature  ? 

vii.  Learn,  if  possible,  what  important  laws  were  made  at  the  last 
session  of  the  legislature  concerning  cities,  especially  the  one  nearest 
to  you ;  affecting  local  rural  government ;  changing  the  punishment 
for  any  crime;   other  subjects. 


The  Executive  (§§  430-433) 

I.  Give  the  chief  advantages  and  disadvantages  of  executive  de- 
centralization in  the  states.  What  ofHcials  besides  the  governor  or 
boards  have  the  most  power  ? 


The  States:  Constittitions  and  Governments    365 

2.  Account  for  the  greater  number  of  qualifications  for  governors 
now  than  in  1780. 

3.  What  is  a  majority  ?  a  plurality  ?  Is  it  better  to  require  a  majority 
vote  for  election  of  governor  ?    Give  reasons  in  full  for  your  answer. 

i.  How  many  states  elect  the  governors  for  one  year  ?  for  two  ? 
for  three  ?  for  four  ?  In  how  many  is  the  governor  not  eligible  for 
the  next  term?  What  state  has  the  lowest  qualifications?  the  highest? 
Are  they  uniform  or  not  on  the  whole  ?     (Appendix  G,  Table  III.) 

ii.  Is  there  a  lieutenant-governor  in  your  state  ?  What  are  his 
qualifications  ?  What  other  elected  officials  have  you  ?  What  officials 
mentioned  in  §  432  are  chosen  by  your  legislature  ?  appointed  by  the 
governor  ?  Name  the  boards  elected  by  the  people  ;  the  chief  ones 
chosen  by  the  legislature  or  governor.  Are  their  terms  long  or  short 
as  a  rule  ?     (Constitution  and  Register.) 

iii.  Does  your  governor  have  power  to  call  or  adjourn  the  legis- 
lature ?  What  other  legislative  powers  has  he  ?  Who  exercises  the 
right  to  pardon  in  your  state  ?     (Constitution.) 

iv.  When  was  the  last  gubernatorial  election  ?  Who  were  the 
principal  candidates  ?  Who  was  elected  ?  By  what  plurality  ?  What 
acts  of  special  merit  or  demerit  has  he  performed  since  taking  office  ? 
Who  is  your  secretary  of  state  ?  your  controller  ?  your  attorney- 
general  ? 

The  Judiciary  (§§  434-437) 

I.  Enumerate  the  chief  merits  and  defects  of  popular  election  for 
'udges  ;  of  long  terms  ;   of  short  terms. 

i.  Which  section  of  the  United  States  is  most  favorable  to  popular 
election  of  judges?  to  election  by  the  legislature?  to  appointment  by 
the  executive?  Where  are  the  terms  longest?  shortest?  How  many 
of  the  courts  have  over  five  members  each?     (Appendix  G,  Table  III.) 

ii.  How  many  grades  of  courts  in  your  state?  How  many  judges 
in  the  highest  court  ?  How  are  they  selected,  and  for  what  term  ? 
WTiat  salary  do  they  get ?  Can  they  hold  court  separately?  Over  what 
classes  of  cases  have  they  jurisdiction  ?     (Constitution  or  Civil  Code.) 

iii.  Are  there  courts  between  the  highest  and  the  county  courts  ? 
What  are  they  called  ?  How  many  are  there  ?  How  many  judges  in 
each  ?    Answer  questions  in  ii  for  these  and  all  lower  courts. 

iv.  Where  does  the  highest  court  hold  its  sessions  ?  At  what  time 
or  times  ?  Name  at  least  one  judge.  Name  all  the  courts  held  at  any 
time  in  your  city  or  in  the  largest  city  near  you.  Do  all  of  the  judges 
belong  to  the  same  party  ?  Has  any  attempt  been  made  to  make  the 
bench  nonpartisan  ? 


CHAPTER  XIX 

SOME  PHASES  OF  STATE  ACTIVITY 
General  References 

Willoughby,  "  State  Activities  and  Politics,"  in  A.  H.  A.,  Volume  V 
(1891). 

Whitten,  Trend  of  Legislation  in  the  United  States.  The  best  sum- 
mary of  the  work  actually  done  during  the  last  quarter  century. 

Whitten,  Public  Administration  in  Massachusetts  :  the  Relation  of 
Central  to  Local  Activity.  Covers  the  most  important  subjects 
very  succinctly  for  this  state. 

Fairlie,  The  Centralization  of  Administration  in  New  York  State. 
Shows  increased  state  activity  in  education,  charities  and  cor- 
rection, public  health,  and  taxation. 

Hinsdale,  The  American  Government,  chap.  LVI,  on  "  State  Edu- 
cation."    An  excellent  summary. 

Boone,  Education  in  the  United  States,  especially  79-II6.  A  satisfac- 
tory brief  account  for  reference. 

Draper,  "Educational  Organization  and  Administration,"  in  Butler's 
Education  in  the  United  States,!,  1-31.   A  good  general  description. 

United  States  Commissioner  of  Education.  Report  for  1893-1894, 
pp.  1063-1300.  Digest  of  public  school  laws  relating  to  adminis- 
tration, etc. 

Wines  and  Koren,  The  Liquor  Problem.  Considers  the  different  sys- 
tems of  liquor  control.     Based  upon  careful  observation. 

Sites,  The  Centralization  of  Liquor  Administration  in  the  United  States, 

Wines,  E.  C,  The  State  of  Prisons,  87-216.  Treats  the  system  used 
in  the  different  states. 

Wines,  F.  H.,  Punishment  and  Reformation.     Largely  historical. 

Periodical  indexes  under  titles  Administration,  Marriage,  Divorce, 
Corporations,  License,  Prohibition,  Local  Option,  Education, 
Schools,  Teaching,  Punishment,  Debt,  Reformation,  etc. 

Disadvan-  438.  Uniformity  and  Diversity  of  State  Laws.  —  Mention 

teges  of  ^J^g  made  in  the  last  chapter  of  the  uniformities  and  diversi- 

QiVGrsity 

ties  in  state  law,  and  attention  was  called  to  the  fact  that 

366 


Some  Phases  of  State  Activity  367 

while  the  general  principles  of  legislation  were  alike  every-  Cooiey. 

where,  there  also  existed  very  great  differences  in  details.  ^'"*^^'^  Law, 

Where  these  differences  deal  with  permanent  personal  rela-  „,., 

r  •      ■.        ,  Wilson,   The 

tions,  or  industrial  operations  of  magnitude,  they  may  cause  state, 

considerable  confusion  or  lead  to  objectionable  results.  §J  1108-1114. 

439.  Marriage  and  Divorce.  —  Anything   that   tends  to  Desirability 


of  uniform 

The  opportunities  given  by  differences  in  state  law  to  enter 


weaken  family  ties  is  a  menace  to  the  welfare  of  the  nation. 

divorce  laws. 


into  the  marriage  bond  without  due  legal  precautions,  or  -^^^^'^  j 
to  break  off  those  bonds  for  trivial  reasons,  are  therefore  v.,  829  eise^. 
deplorable.  Our  laws,  particularly  for  divorce,  are  no 
more  stringent  than  they  should  be,  providing  for  separa- 
tion upon  numerous  pretexts  and  are,  as  a  rule,  leniently 
applied  by  the  courts.  This  is  bad  enough,  but  what  has 
proved  much  worse  is  the  possibility  of  evading  even  these 
regulations  by  acquiring  a  nominal  residence  in  some  other 
state,  where  the  laws  are  still  more  lax  and  the  judges  less 
particular.  The  distance  from  the  place  where  the  other 
party  lives  makes  it  difficult  for  the  latter  to  answer  the  com- 
plaint if,  in  fact,  aware  that  one  has  been  made.  While 
there  has  been  some  improvement  of  late  years,  these  prac- 
tices have  undoubtedly  influenced  the  more  stable  states, 
and  not  for  the  better.  All  of  these  things  have  given  us 
an  unpleasant  notoriety  abroad,  and  have  produced  a  wide- 
spread demand  for  a  national  divorce  law. 

Much  the  same  statements  may  be  made  about  the  mar-  Diversities  in 
riage  laws.  The  ages  of  consent  vary  greatly  from  one  jn^mage 
state  to  another.  Some  require  licenses  that  are  often- 
times real  safeguards.  The  greatest  danger  arises  from  the 
evasion  of  law  by  moving  to  a  neighboring  state,  where 
restrictions  are  few.  As  all  but  three  states  admit  the 
legality  of  such  marriages  when  the  parties  return  to  their 
own  home,  the  extent  of  the  evil  may  be  appreciated. 

South  Carolina  is  the  only  state  that  has  no  divorce  laws. 

440.  Control  of  Corporations. — A  disadvantage  very  im-  state  regula- 
portant,  but  of  an  entirely  different  kind,  though  due  to  *'°"  ^^"'*y- 


368 


The  American  Federal  State 


Smith,  in 
Amer.  Jol. 
Soc,  XIX, 
132  et  seq. 


Lack  of  uni- 
form laws 
and  admin- 
istration 
favors  crime. 


lack  of  uniform  legislation,  affects  corporations.  No  cor- 
poration can  do  business  without  gaining  permission  from 
the  authorities  of  some  state  and  complying  with  the  state 
corporation  law.  Having  done  this,  it  proceeds  to  do  busi- 
ness in  that  state  and  in  others,  usually  without  reincorpora- 
tion in  the  latter.  This  does  not  mean  that  the  corporation 
is  necessarily  free  from  control  in  the  other  states,  but  that, 
as  a  matter  of  fact,  the  one  state  where  it  was  organized 
has  checks  upon  it  and  its  management  which  the  others 
cannot  easily  obtain.  It  will  readily  be  seen  that  corpora- 
tions will  gravitate  toward  the  states  that  favor  them,  for 
some  states  are  glad  to  attract  them  on  almost  any  terms. 
Consequently,  there  is  likely  to  be  a  loosening  of  govern- 
ment control  all  along  the  line,  as  no  state  can  afford  to 
lose  so  much  business.  The  same  thing  is  true  about  the 
taxation  of  corporations  as  with  their  control.  Corpora- 
tions will  shun  the  commonwealth  that  levies  a  heavy  tax 
upon  their  stock  or  franchise,  and  go  to  one  where  they  pay 
only  on  their  visible  property.  If  that  happens  very  fre- 
quently, it  is  ruinous  alike  to  a  proper  system  of  state  finance 
and  a  suitable  regulation  of  corporations. 

441.  Criminal  Legislation.  — Considerable  variety  in  the 
laws  regarding  crime  is  noticeable  from  state  to  state.  This 
is  true  not  alone  because  the  definitions  of  crimes  are  unlike, 
but  on  account  of  the  differences  in  the  punishment  meted 
out.  For  example,  five  states  have  abolished  the  death 
penalty  for  murder.  In  one  state  an  offence  may  be  merely 
a  misdemeanor  punishable  by  imprisonment  for  a  short 
time;  in  an  adjoining  one  it  may  be  considered  a  felony, 
conviction  for  which  means  from  ten  to  twenty  years  of 
hard  labor.  These  inequalities  tend  to  draw  hardened 
characters  to  places  where  the  laws  are  lenient  and  produce 
more  law-breaking  than  would  naturally  result  under  uniform 
laws. 

442.  Lack  of  Uniformity  an  Apparent  rather  than  a  Real 
Evil.  — The  more  we  study  the  real  differences  that  exist 
between  the  laws  in  force  in  various  states,  the  more  we  are 


Some  Phases  of  State  Activity  369 

impressed  with  the  belief  that  the  difference  is  not  so  much   Differences 

in  the  statutes  themselves  as  in  the  interpretation.     Take   !"  ^^'"'"- 

istration 
the  subject  of  divorce,  in  relation  to  which  the  need  of  a  would  exist 

single  law  is  most  generally  recognized.  The  state  laws  '"  different 
are  much  more  alike  than  would  at  first  seem  possible,  and  thesameUw. 
those  who  have  given  most  attention  to  the  question  assert 
that  the  ease  with  which  the  marriage  bond  is  severed  in 
some  of  the  newer  states  is  due  far  more  to  the  independent 
position  of  woman  and  the  lack  of  disapproval  among  the 
majority  of  the  citizens  than  to  the  leniency  of  the  law. 
Since  the  public  sentiment  of  any  community  determines, 
to  a  very  large  degree,  the  way  in  which  state  law  is  inter- 
preted and  applied  (except  where  official  action  is  princi- 
pally influenced  by  selfishness  or  corruption)  the  evils  which 
have  arisen  from  an  increase  in  the  number  of  divorces 
ought  not  to  be  charged  to  the  variations  in  state  legisla- 
tion, but  to  the  differing  standards  of  public  morality  in 
various  sections.  So  far  as  the  lax  methods  of  some  states 
have  permitted  husband  or  wife  to  evade  the  law  of  their 
own  home,  or  have  made  the  courts  in  the  older  states  less 
strict  in  reference  to  divorce  cases,  diverse  laws  have  done 
great  harm;  but  if  a  national  divorce  law  would  inevitably 
be  followed  by  the  same  interpretation  in  Massachusetts 
and  in  California,  it  might  not  have  so  favorable  an  effect  as 
desired.  In  other  words,  our  divorce  laws  do  not  seem  to 
differ  so  much  as  the  views  held  regarding  divorce  in  dif- 
ferent parts  of  the  nation;  and  if  the  laxity  of  judicial  in- 
terpretation in  the  West  merely  reflects,  on  the  whole,  the 
popular  feeling,  a  stricter  interpretation  of  the  law  would 
not  remedy  the  evil. 

443.  Means    of   producing   Greater   Uniformity.  —  Were  interstate 
there  no  possible  way  to  reconcile  any  differences  between  comity, 
state  laws,  those  that  exist  would  occasion  much  greater  Cooiey, 
difficulty  than  they  do;  but  the  United  States  Constitution  ^^^^    "*' 
prescribes  that,  "Full  faith  and  credit  shall  be  given  in 
each  state  to  the  public  acts,  records,  and  judicial  proceed- 
ings of  every  other  state."     Most  of  the  states  go  much 

2B 


ties. 


370  The  American  Federal  State 

further  than  this,  and  provide  that  not  only  public  acts, 
but  individual  ones  under  the  law  of  another  state  shall  be 
accepted  and  judged  by  the  law  of  that  commonwealth. 
E.g.  if  a  man  makes  a  contract  in  one  state  and  moves  to 
another,  even  though  the  laws  of  the  second  might  release 
him  from  performing  that  after  a  certain  time,  he  is  bound 
still  by  the  law  under  which  it  was  made,  so  that  differences 
in  state  law  never  release  him  from  his  obligations.  Again, 
if  a  person  dying  in  Colorado  held  property  also  in  New 
York,  his  will  if  approved  by  the  Colorado  court  will  also 
be  accepted  by  that  of  New  York,  even  though  the  evidence 
would  have  been  insufficient  to  prove  it  in  the  Eastern 
state.  On  the  whole,  the  acceptance  by  New  York,  though 
perhaps  open  to  objection  in  some  respects,  was  far  less 
objectionable  than  the  rejection  of  the  will. 
Vast  extent  444-  Uniformity  in  State  Law.  —  Yet  we  must  not  under- 
of  uniformi-  estimate  the  degree  of  uniformity  that  covers  almost  every 
subject.  The  clearest  idea  of  the  extent  to  which  state 
laws  are  alike  can  be  given  by  quoting  from  Professor 
Woodrow  Wilson,  The  State  (§  11 14):  — 

"Unquestionably  there  is  vastly  more  uniformity  than 
diversity.  All  the  states  have  built  up  their  law  upon  the 
ancient  and  common  foundation  of  the  Common  Law  of 
England,  the  new  states  borrowing  their  legislation  in 
great  part  from  the  old.  Nothing  could  afford  clearer  evi- 
dence of  this  than  the  freedom  with  which,  in  the  courts  of 
nearly  every  state  in  the  Union,  the  decisions  of  the  courts 
of  the  other  states,  and  even  the  decisions  of  the  English 
courts,  are  cited  as  suggestive  or  illustrative,  sometimes  also 
as  authoritative,  precedent.  Everywhere,  for  instance,  the 
laws  of  property  rest  upon  the  same  bases  of  legal  principle, 
and  everywhere  those  laws  have  been  similarly  freed  from 
the  burdens  and  inequalities  of  the  older  system  from  which 
they  have  been  derived.  Everywhere  there  is  the  same 
facility  of  transfer,  the  same  virtual  abolition  of  all  the 
feudal  characteristics  of  tenure,  the  same  separation  between 
the  property  interests  of  man  and  wife,  the  same  general 


Some  Phases  of  State  Activity  371 

rules  as  to  liens  and  other  claims  on  property,  the  same 
principles  of  tenancy,  of  disposition  by  will,  of  intestate 
inheritance,  and  of  dower.  Everywhere,  too,  contracts, 
common  carriage,  sales,  negotiable  paper,  partnership,  rest 
upon  similar  principles  of  practically  universal  recognition. 
We  feel  the  conflicts,  because  we  suffer  under  their  vexa- 
tions; while  we  fail  to  realize  and  appreciate  the  uniformi- 
ties because  they  are  normal  and  have  come  to  seem  matters 
of  course.  It  must  be  acknowledged,  moreover,  that  even 
within  the  area  of  irritation  there  are  strong  corrective 
forces  at  work,  a  growing  moral  sentiment,  and  a  fashion 
of  imitation,  promising  the  initiation  and  propagation  of 
reform.  As  the  country  grows  socially  and  politically,  its 
tendency  is  to  compact,  to  get  a  common  thought,  and 
establish  common  practices.  As  it  compacts,  likenesses 
will  be  emphasized,  diversities  pared  and  worn  away." 

445.  Evolution  of  the  Public  School  System. — The  sub-  Private 
lect  of  education  has  only  within  the  nineteenth  century  ^'^}^°°^^  f"P- 

'  ...  planted  by 

become  of  especial  interest  to  our  governments,  as  it  was  public  ones, 
formerly  left  almost  everywhere  to  private  parties.  The 
transition  from  private  to  public  control  was  gradual,  occur- 
ring first  in  the  Northeast  in  connection  with  primary  and 
grammar  schools,  but  completed  earliest  in  the  Western 
states,  in  which  private  schools  were  never  numerous. 
Later,  and  in  fact  quite  recently,  secondary  education  has 
been  undertaken  at  public  expense,  the  private  academies 
of  the  past  having  been  largely  supplanted  by  free  high 
schools.  During  the  transition  period  for  both  grammar 
and  high  schools  some  characteristics  of  the  private  system 
were  retained,  the  whole  expense  of  the  schools  not  being 
borne  by  the  public,  but  each  pupil  paying  nominal  "rates  " 
to  cover  the  balance. 

In  developing  free  schools  in  the  West  the  impetus  given 
by  the  public  land  grants  of  the  United  States  government 
(§§  187,  449)  was  of  the  first  importance.  These  grants 
were  for  the  benefit  of  the  common  schools  and  of  state 
universities,  which  have  been  established  in  all  of  the 


372 


The  Americayi  Federal  State 


Education 
an  affair  of 
the  state. 


Principles  of 
state  school 
law. 


Methods  of 
state  super- 
vision. 

Boone, 
Education  in 
U.S..  loi- 
X09. 


States  formed  from  the  public  domain  {i.e.  the  land  once 
directly  controlled  by  Congress)  and  in  a  few  others. 

446.  State  Systems  of  Education.  —  Except  in  a  few 
states,  the  earliest  public  schools  were  organized  by  sepa- 
rate localities  desiring  them,  and  not  by  the  states  as  a 
whole;  but  as  the  need  of  more  satisfactory  instruction  and 
greater  uniformity  became  apparent  the  legislatures  began 
to  organize  regular  state  school  systems.  Very  few  of 
these  provided  at  the  first  for  any  state  school  officers,  or 
for  any  real  uniformity  in  school  law  or  administration. 
But  gradually  the  systems  have  been  elaborated  till  their 
details  are  all  regulated  by  the  state,  though  everywhere 
administered  by  local  boards  and  commissioners.  The 
schools  are  therefore,  like  so  many  other  things,  a  phase  of 
state  activity  largely  under  the  direction  of  the  localities. 

Among  other  things  the  state  law  determines  whether  the 
district,  the  township,  or  the  county  shall  be  the  unit  for 
school  administration,  and  what  officers  it  shall  select,  with 
the  powers  of  each.  It  also  prescribes  a  minimum  list  of 
subjects  which  every  school  must  teach,  the  minimum 
school  year,  and  the  requirements  of  teachers  of  the  differ- 
ent grades;  but  usually  suitable  means  to  enforce  these 
regulations  are  lacking,  except  where  the  state  contributes 
a  large  amount  to  the  localities  —  which  may  be  withheld 
for  cause  —  or  where  the  state  board  or  superintendent 
is  vested  with  considerable  power.  Since  it  is  for  the 
advantage  of  every  district  to  have  the  best  schools  pos- 
sible, control  by  state  authorities  is  less  necessary  than  it 
would  be  under  different  conditions. 

447.  The  State  School  Board  and  Superintendent.  —  All 
but  one  of  the  states  provide  for  some  state  school  official, 
while  most  of  them  have  state  boards  of  education.  The 
boards  are  almost  always  chosen  by  the  governor  or  the  leg- 
islature, but  the  superintendents  are  more  frequently  elected 
by  the  people.  The  duties  performed  by  the  boards  may 
include  the  general  oversight  of  the  state  system,  the  care 
of  the  state  funds,  and  the  examination  of  teachers,  unless 


So7ne  Phases  of  State  Activity 


373 


that  is  assigned  to  county  boards  under  their  charge,  and 
possibly  the  selection  of  the  text- books,  which  in  nine 
states  are  free.  The  board  is  expected  to  do  what  it  can 
to  improve  the  schools  by  suggesting  new  methods  and  by 
other  means.  The  actual  performance  of  those  duties, 
besides  others,  is  usually  left  to  the  superintendent  or  state 
commissioner,  who  is  ordinarily  a  member  of  the  board. 
He  has,  as  a  rule,  very  little  power,  being  merely  a  super- 
visory official,  but  he  may  possess  considerable  influence. 
In  addition  to  the  subjects  just  mentioned,  he  has  general 
charge  of  the  holding  of  teachers'  institutes  and  the  issuance 
of  certificates.  In  New  York,  and  one  or  two  other  states, 
he  is  a  real  executive,  with  the  right  to  hear  and  decide  com- 
plaints and  to  remove  teachers  or  commissioners  for  cause. 

448.  Local  School  Administration.  —  The  counties  almost 
always  have  boards  of  education,  to  whom  the  examining 
of  teachers  is  intrusted  under  state  laws,  and  commis- 
sioners or  superintendents,  whose  chief  duty  is  to  visit  the 
schools  and  to  distribute  the  state  and  county  funds  to  the 
different  schools.  In  parts  of  the  South  there  are  no  school 
taxes  raised  by  any  political  division  smaller  than  the 
county,  and  many  of  the  duties  elsewhere  assigned  to 
trustees  are  there  performed  by  the  county  board. 

In  the  rural  sections,  the  real  administration  of  school  law 
rests  with  the  officials  chosen  either  by  districts  or  by 
townships.  In  either  case  there  are  usually  three,  but  often 
six  or  nine,  trustees  elected  by  the  voters  of  the  locality, 
who  hold  office  for  three  years,  and  have  power  to  select 
teachers,  provide  for  studies  in  addition  to  those  required 
by  the  state,  raise  taxes,  usually,  and,  with  the  consent  of 
the  voters,  borrow  money  for  new  buildings.  The  district 
system  is  more  common  than  that  of  the  township,  but  if 
the  districts  are  small,  it  is  impossible  to  secure  careful 
supervision  by  local  superintendents,  which  is  one  of  the 
greatest  aids  to  successful  work. 

In  the  cities  the  full  control  of  the  schools  belongs  to  a 
board  of  education,  occasionally  of  five  members,  but  often 


Draper,  in 

Butler's 
Schools  in 
U.  S.,  17-22. 


County 
officials  and 
school 
taxes. 

Boone,  Hid., 
113-116. 


District  and 

township 

systems. 

Draper,  in 
Butler's 
Schools  in 
U.S.,  7-1 1. 


City  super- 
vision. 


374 


The  American  Federal  State 


Boone,  ibid., 
109-113, 

Draper,  ibid.. 

Sources  of 
revenue. 

Boone,  ibid., 
88-93. 


Pedagogical 

schools. 

Boone,  ibid., 
125-148. 


Appointment 
of  teachers. 


much  larger.     There  is  always  a  city  superintendent,  and 
usually  directors  for  special  branches. 

449.  School  Finances.  —  The  public  schools  of  the  United  States 
cost  in  the  neighborhood  of  ;f  200,000,000  a  year,  of  which  about 
seventy  per  cent  is  raised  by  local  taxes  upon  property,  twenty  per 
cent  by  state  taxes,  and  the  rest  in  other  ways.  Among  the  latter  is 
the  interest  arising  from  the  state  school  fund,  which  in  the  newer 
states  is  made  up  of  the  proceeds  from  the  sale  of  public  lands  donated 
by  the  national  government,  consisting  of  one  section  of  each  township 
in  the  states  formed  between  1802  and  1848  and  of  two  townships  to 
those  admitted  later.  Some  of  the  older  commonwealths  have  similar 
funds  made  up  in  part  of  "land  script"  given  them  by  Congress  and 
of  funds  set  aside  by  the  legislature  for  the  purpose.  In  no  case,  how- 
ever, does  the  interest  from  the  fund  cover  more  than  a  small  propor- 
tion of  the  expense. 

In  some  of  the  Middle,  Western,  and  Southern  states  the  amount 
contributed  by  the  states  nearly  equals  or  at  times  exceeds  that  collected 
in  the  localities.  A  few  of  these  states  have  taken  advantage  of  this 
distribution  of  money  to  improve  the  condition  of  the  schools,  particu- 
larly by  withholding  a  county's  appropriation  in  default  of  required 
improvements  ;  but  the  chief  benefit  of  collecting  money  through  the 
state  is  the  help  given  to  the  poorer  districts  which  are  thus  assisted  in 
their  support  of  the  schools. 

450.  The  Preparation  and  Selection  of  Teachers. — The 
chief  essential  of  a  perfect  school  is  not  complete  laws, 
careful  administration,  or  vast  expenditures,  valuable  as 
all  of  them  may  be,  but  a  corps  of  fine  teachers.  Fifty 
years  ago  it  was  next  to  impossible  to  get  teachers  who  were 
thoroughly  informed  or  well  trained,  but  most  of  the  diffi- 
culties of  that  day  have  been  overcome.  Beginning  with 
Massachusetts  in  1839,  the  states  have  constructed  state 
normal  schools,  and  most  of  the  state  universities  have 
established  pedagogical  departments.  Teachers  not  pre- 
pared in  either  of  these  obtain  certificates  by  examination. 

But  the  excellence  of  the  teaching  corps  depends  upon 
several  things  other  than  the  preparation.  Of  these  the 
method  of  selecting  teachers  demands  brief  consideration. 
Almost  without  exception  the  choice  of  teachers  is  left  to 
boards  of  trustees  or  of  education,  often  composed  of  strong 


Some  Phases  of  State  Activity  375 

partisans.  As  teachers  are  rarely  appointed  for  a  longer 
term  than  one  year,  there  is  ample  opportunity  for  changes; 
and  the  new  appointee,  more  often  than  should  be  the  case, 
gets  the  position  for  personal  or  political  reasons.  Such 
changes  can  only  be  condemned,  and  the  remedy  lies  in 
taking  the  schools  out  of  politics  and  permitting  the  boards 
to  dismiss  only  for  a  cause  that  satisfies  the  community. 

451.  The  Liquor  Problem.  —  The  manufacture  and  sale  of   public  inter- 
alcoholic  liquors  demands  the  constant  control  and  super-   "ts  involved, 
vision  of  state  and  local  authorities.     Intoxicants  are  gen- 
erally believed  to  be  responsible  for  the  large  part  of  the 

poverty,  vice,  and  crime  in  existence,  so  that  control  is 
primarily  for  public  protection,  rather  than  to  develop 
public  morality.  But  another  aspect  of  the  liquor  inter- 
ests assures  civic  importance,  and  that  is  the  part  played 
by  manufacturers  and  dealers  in  political  affairs.  No  other 
business  possesses  as  complete  and  as  powerful  an  organi- 
zation, or  has  as  much  to  do  with  the  election  of  officials, 
state  and  local.  Particularly  in  large  cities  party  nomina- 
tions, appointments,  especially  on  the  police  force,  and 
certain  classes  of  ordinances  are  dictated  by  those  most 
interested  in  the  liquor  traffic.  Occasionally  we  find  that 
most  of  the  primaries  are  held  in  the  saloons,  and  at  times 
even  the  election  booths  are  located  in  them.  The  domi- 
nation of  this  organization,  like  that  of  great  railways 
or  trusts  which  control  certain  states,  is  always  to  be 
deprecated  and,  so  far  as  possible,  avoided. 

The  question  of  temperance  as  such  is  a  moral  and  not  a  political 
one,  and  only  indirectly  connected  with  state  legislation  and  local 
administration.  For  that  reason  the  following  discussion  deals  exclu- 
sively with  the  liquor  problem  from  the  standpoint  of  government  As 
the  courts  have  almost  everywhere  upheld  the  constitutionality  of  the 
most  severe  anti-liquor  laws,  the  relation  of  regulation  to  personal  free- 
dom is  not  touched  upon. 

452.  Systems  of  State  Control. — The  regulation  of  the  Eliot  </ a/.,  in 
liquor  business  usually  devolves  upon  the  cities  and  coun-  -^^""^  ^"^ 
ties;  bftt  the  laws  thus  carried  out  are  invariably  made  by 


376 


The  American  Federal  State 


Eliot,  in  At. 
Mo.,  LXXIX 
(1897),  i8a- 
187. 


the  state,  and  may  be  either  in  the  form  of  statutes  or  em- 
bodied in  the  constitution.  There  are  five  main  systems 
in  use,  three  of  which  are  now  in  force  in  all  but  two  states. 
The  other  two  are  the  Ohio  system  of  taxing  saloons,  just 
as  some  other  kinds  of  business  are  taxed,  and  the  South 
Carolina  dispensary.  The  three  which  are  much  more 
common  are  the  license  system,  state  prohibition,  and  local 
option,  which  is  a  form  of  the  license  system  with  local 
prohibition. 


The  difference  between  a  tax  and  a  license  is  that  the  latter  is  is- 
sued before  a  saloon  may  be  opened,  and  is  granted  only  under  speci- 
fied conditions,  e.g.  payment  of  a  sum  of  money  to  the  government, 
petition  from  property  holders  in  the  vicinity,  filing  of  a  bond  to  ob- 
serve all  saloon  regulations,  etc.  A  tax  can  be  levied  only  upon  places 
actually  doing  business,  but  the  saloons  are  of  course  subject  to  Vi.ll 
laws  made  for  police  control. 


The  South 

Carolina 

system. 

Koren,  in 
Liquor  Prob- 
lem, 141- 
180. 


Extent  of  and 
tendencies  in 
the  license 
system. 


453.  The  Dispensary.  —  The  dispensary  is  an  innovation 
for  the  regulation  of  sale  of  liquor  in  this  country,  and  is 
used  in  South  Carolina  and  in  some  cities  in  Georgia  and 
Alabama.  The  state  creates  a  monopoly  for  the  sale  of  all 
intoxicants,  and  leaves  this  in  the  hands  of  its  officials.  In 
South  Carolina  the  central  authority  is  a  board  composed 
of  the  governor,  the  attorney-general,  and  the  controller. 
There  is  a  distributing  depot,  located  at  the  state  capital, 
from  which  all  the  liquor  consumed  in  the  state  is  sent  in 
sealed  packages  to  dispensaries,  established  in  accordance 
with  law,  at  various  points.  The  dispensary  sells  the 
unbroken  packages,  which  are  not  to  be  opened  on  the 
grounds.  An  efficient  police,  together  with  severe  regula- 
tions, have  succeeded  in  breaking  up  illegal  dealing;  and 
the  system  seems  to  have  been,  financially  and  otherwise,  a 
fair  success. 

454.  The  License  System.  —  Most  of  the  states  permit 
licenses  to  be  granted  to  liquor  saloons  upon  certain  con- 
ditions. Until  recently  the  payment  of  the  license  "fee  " 
was  the  principal  one,    the   "fee"  being   moderate    in 


Some  Phases  of  State  Activity 


177 


amount.  But  there  has  been  a  decided  tendency  to  replace 
low  with  high  license,  to  prevent  the  location  of  saloons 
near  churches  and  schools,  and  to  be  more  particular  about 
the  parties  to  whom  licenses  are  given.  More  stringent 
laws  have  also  been  made  relative  to  the  daily  hours  of 
opening  and  closing  side  entrances  and  closing  on  Sundays, 
election  days,  and  holidays.  But  all  of  these  things  have 
counted  for  little  where  public  sentiment  has  not  compelled 
at  least  a  partial  enforcement  of  the  law,  which  happily  has 
occurred  in  most  places.  The  larger  licenses  have  brought 
more  money  into  the  treasuries,  but  have  increased  the 
number  of  illegal  liquor  dealers,  except  where  perfect  ad- 
ministration of  the  law  was  possible.  Violation  of  many 
of  these  regulations  is  unfortunately  still  the  rule,  particu- 
larly where  the  police  force  overlooks  the  law-breaking 
for  a  consideration  or  to  avoid  conflict  with  the  liquor 
organization. 

455.  State  Prohibition.  —  Over  one-third  of  the  states 
have  at  one  time  or  another  prohibited  the  manufacture  and 
sale  of  intoxicating  liquors  within  their  limits.  At  the 
present  time,  five  have  such  laws,  and  in  two  of  these, 
Maine  and  Vermont,  the  law  has  existed  in  various  forms 
for  fifty  years.  So  far  as  manufacture  is  concerned,  pro- 
hibition actually  prohibits;  but  a  different  result  is  noticed 
in  connection  with  the  question  of  sale,  and  the  result  is 
easily  summarized:  where  the  community  earnestly  favors 
prohibition,  public  sale  is  impossible,  while  private  sale  is 
difficult  and  usually  punished;  where  the  community  is 
indifferent,  illegal  traffic  is  common;  but  where  prohibi- 
tion is  distasteful,  as  in  all  cities  of  size,  there  is  little 
attempt  to  conceal  the  places  where  drinks  can  be  obtained. 

456.  Local  Option.  —  In  about  one-half  of  the  states  the 
towns,  districts,  or  counties  are  permitted  to  decide,  by 
popular  vote,  whether  they  will  have  license  or  no  license. 
By  this  method  local  prohibition  exists  over  a  fair  portion 
of  the  United  States,  but  only  in  those  parts  where  it  is 
favored  for  personal  or  business  reasons.    It  can  readily  be 


Eliot,  in  At. 
Mo.,  LXXIX, 
181-182. 


Results  of 
"  state  wide  " 
prohibition. 

Eliot,  in  At. 
Mo.,  LXXIX, 
179-180. 

Johnston,  in 
Lalor,  III, 
378-380 
(historical) . 


Local  option 
in  practice. 

Eliot,  in  At. 
;i/o.,  LXXIX. 
180,  x8i. 


378 


The  American  Federal  State 


Oberholtzer, 
Referendum, 
388-294. 


Administra- 
tion more 
important 
than  legisla- 
tion. 


Indirect 
influence  of 
legislation. 


Barbarous 
practices 
replaced  by 
reformatory 
methods. 

McMaster, 
United  States, 
I,  98-102 
(Prisons, 
1784). 


seen  that  the  enforcement  of  the  law  in  these  localities  is 
likely  to  be  better  than  those  of  prohibition  states;  but  the 
difficulties  of  enforcement  are  apt  to  be  greater  because 
importations  are  easy.  Although  free  from  the  glaring 
defects  that  characterize  the  administration  of  the  anti- 
saloon  law  in  states  that  have  prohibition,  local  option, 
nevertheless,  encounters  much  the  same  class  of  difficulties 
as  those  found  under  prohibition. 

457.  General  Results  of  Liquor  Legislation  and  Control.  — 
To  whatever  system  we  turn,  we  find  that  future  problems 
far  outnumber  past  solutions.  But  experience  teaches  some 
lessons  of  considerable  value,  viz. :  that  for  the  proper  con- 
trol of  the  traffic,  careful  and  constant  administration  of  suit- 
able police  regulations  is  the  one  thing  indispensable;  that 
laws  which  remain  dead  letters  are  not  suitable;  and  that 
there  will  never  be  careful  and  proper  administration  in  the 
midst  of  popular  apathy.  With  the  moral  aspects  pure  and 
simple,  we  have  nothing  here  to  do;  but  so  far  as  we  may 
judge  from  experiments,  the  process  of  making  people  good 
by  legislation  is  a  long  and  painful  one. 

Good,  although  indefinable,  results  are  probably  obtained 
from  the  laws  made  by  most  legislatures  that  instruction 
shall  be  given  in  the  public  schools  showing  the  injurious 
effects  of  alcohol  upon  the  human  body.  The  principal 
methods,  however,  by  which  temperance  workers  seek  to 
decrease  the  amount  of  intemperance  by  prevention  and 
reform  can  be  little  affected  by  the  attitude  of  the  government. 

458.  Punishment  of  Crime  in  the  Past.  — The  punishment 
of  crime  has  engaged  the  attention  of  States  since  civili- 
zation began,  but  the  methods  of  punishment  now  in  use 
are  distinctively  modern.  In  colonial  times  imprisonment 
was  almost  unknown,  death  being  the  penalty  for  the  most 
serious  offences,  and  some  species  of  public  torture,  like 
the  stocks  or  the  whipping-post,  being  used  for  minor 
crimes.  During  the  early  national  period  there  were  pris- 
ons for  the  incarceration  of  criminals;  but  these  were 
always  of  the  worst  description,  the  prisoners  being  herded 


Some  Phases  of  State  Activity 


379 


together  irrespective  of  age,  offence,  and  other  conditions, 
while  often  the  prisons  were  nothing  but  cellars  or  mines. 
The  gradual  introduction  of  state  prisons  and  more  enlight- 
ened public  interest  did  away  with  the  worst  of  these  evils. 
As  the  world  began  to  realize  that  severe  and  arbitrary 
methods  increased  rather  than  diminished  crime,  greater 
attention  was  paid  to  reforming  the  criminal,  while  schools 
for  the  care  of  neglected  children  or  youthful  offenders 
sprang  up  on  every  side.  Repeated  efforts  have  been  made 
to  raise  the  standard  of  the  local  prisons,  or  jails,  particu- 
larly through  the  creation  of  state  commissions  and  super- 
intendents; but,  in  spite  of  the  progress  made  by  a  few 
states  in  some  directions,  the  legacy  of  the  past,  with  its 
attendant  defects,  is  noticeable  in  some  measure  almost 
everywhere. 

459.  The  State  Prisons.  —  Since  almost  all  of  the  crime 
in  the  United  States  consists  of  the  breaking  of  state 
laws,  we  should  naturally  expect  that  state  authorities 
would  control  its  punishment;  but  there  seems  to  be  noth- 
ing more  hateful  to  the  average  American  than  a  state 
police,  so  that  practically  all  offenders  are  arrested  by 
local  officials,  and  most  of  them  are  confined  in  town  or 
county  jails. 

The  state  prisons  are  reserved  for  the  worst  classes  of 
criminals,  who  are  sentenced  for  the  longest  terms.  Their 
treatment  varies  greatly  from  state  to  state,  but  the  disci- 
pline is  usually  neither  extra  severe  nor  mild.  Solitary 
confinement  is  rare,  while  premiums  are  placed  upon  good 
behavior,  through  systems  of  commutation  by  which  the 
term  of  confinement  may  be  greatly  reduced.  Employment 
is  provided,  ordinarily  for  the  purpose  of  keeping  the  pris- 
oners busy,  and  incidentally  for  revenue.  In  a  very  few 
states  the  custom  still  persists  of  leasing  the  labor  of  the 
convicts  to  contractors,  who  take  entire  charge  of  them, 
paying  the  state  a  net  sum  for  their  services.  The  usual 
results  are  all  that  they  should  not  be,  and  the  only  attempted 
justification  of  the  disgraceful  system  is  the  annual  profit. 


Wines, 
Punishment 
and  Ref- 
er mat  ion, 
147-154- 


Need  of  a 
state  police. 


Prison 
methods. 

Wines,  State 
of  Prisons, 

95-100. 
106-113. 

Ford,  Amer. 
Cits.  Manual, 
113-124. 


38o 


The  American  Federal  State 


Elmira  plan. 

Wines, 

Punishment, 

aao-aaS. 


About  ten  states  have  adopted  a  plan  first  tried  in  New  York,  and 
usually  known  as  the  Elmira  plan.  It  applies  only  to  persons  con- 
victed of  a  first  offence,  and  not  over  thirty  years  of  age.  The  methods 
are  somewhat  similar  to  those  of  juvenile  reformatories,  to  be  described 
presently,  but  include  also  what  is  known  as  the  indeterminate  sen- 
tence. This  leaves  to  the  superintendent  the  right  to  grant  parole 
or  even  release  where  he  believes  it  will  be  beneficial.  The  whole 
scheme  necessarily  demands  great  skill  in  management. 


Value  of  re- 
form schools. 

Wines,  StaU 
0/ Prisons, 
125-13X 


Defects  of 

the  jails. 

Wines, 

Punishment, 

313-315- 


460.  The  State  Reformatories.  —  For  many  years  state 
schools  for  the  reform  of  juvenile  offenders  or  unruly  boys 
and  girls  have  existed  everywhere  except  at  the  South. 
As  the  name  implies,  they  are  really  schools,  whose  chief 
aim  is  to  make  the  inmates  useful  members  of  society  by 
giving  them  some  industrial  training,  a  common  school 
education,  and  by  teaching  them  self-control  and  the  rights 
of  others.  When  properly  conducted,  and  most  of  them 
may  be  so  classed,  they  have  rendered  inestimable  service 
to  their  respective  communities  in  turning  tens  of  thou- 
sands from  criminal  careers.  Most  of  them  take  an  interest 
in  the  graduates  after  they  leave,  seeking  to  keep  an  eye  on 
them,  securing  good  homes  and  steady  occupations  when- 
ever possible.  The  work  of  prevention  performed  by  these 
schools,  and  by  others  for  homeless  children,  is  among  the 
noblest  and  most  practical  of  the  many  functions  performed 
by  the  states. 

461.  The  Local  Institutions.  —  When  a  person  is  sen- 
tenced for  a  short  time  he  is  usually  sent  to  the  county  peni- 
tentiary, of  which  there  are  a  great  number.  If  awaiting 
trial,  or  held  as  witness  without  bail,  he  is  confined  in  the 
same  or  in  some  local  jail.  Most  of  these  institutions  seem 
to  have  taken  no  share  in  the  great  advance  movement  for 
better  prisons  and  better  methods.  Ordinarily  they  are 
unhealthful;  often  they  are  worse.  No  work  is  provided 
in  most  instances,  neither  is  there  any  classification  of 
prisoners  according  to  age  or  crime.  As  all  are  thrown 
together  and  idleness  prevails,  local  prisons  cannot  be 
said  to  be  effective  agencies  in  the  prevention  of  crime. 


Some  Phases  of  State  Activity  381 


462.  The  Problem  of  Correction  and  Reformation. — The  Conditions 

solution  of  present  difficulties  is  by  no  means  an  easy  one,    ""^^^yorabie 
'^  to  crime. 

and  includes  much  more  than  the  methods  employed  by  our 
penal  and  reform  institutions,  valuable  as  any  improve- 
ment in  those  methods  may  be.  Modem  conditions  are 
both  more  or  less  favorable  to  crime  than  those  of  former 
times.  They  discourage  it  because  there  are  fewer  sparsely 
settled  sections  which  afford  opportunities  for  concealment 
of  crimes  and  the  escape  of  criminals;  because  means  of 
transportation  are  better,  and  because  our  cities  are  better 
lighted.  It  is  said  that  the  introduction  of  gas  in  London 
a  century  ago  did  more  to  prevent  crime  on  the  streets 
of  that  city  than  all  the  harsh  measures  of  previous  years. 
More  than  all  else,  universal  education  has  helped  to  give 
people  clearer  ideas  of  right  and  wrong,  and  has  proved  a 
spur  which  has  kept  multitudes  out  of  the  ranks  of  criminals. 

In  the  other  direction  several  tendencies  are  perceptible.  Conditions 
One  of  these  is  the  great  congestion  of  population  in  cities.  f*y°"°8 
The  slums  of  our  larger  centres  produce  more  recruits  for 
the  army  that  preys  upon  society  than  all  reformatory  and 
philanthropic  efforts  can  reclaim.  Another  is  the  publicity 
given  to  wrong  doing  by  certain  classes  of  newspapers. 
As  there  is  nothing  which  a  person  of  criminal  instincts  so 
much  desires  as  notoriety,  the  "education"  of  these  jour- 
nals is  all  in  the  wrong  direction.  To  counteract  these  and 
other  incentives  to  crime,  the  government  can  do  very  little. 

Many  good  people  question  whether  the  milder  penal  Lynch  law. 
laws  and  more  lenient  administration  of  to-day  are  effective 
in  keeping  down  the  number  of  criminals.  They  think 
that  the  increase  in  the  applications  of  lynch  law,  and  the 
accompanying  disorder,  are  the  outgrowth  of  popular  dis- 
gust with  the  failure  of  the  courts  to  punish  with  sufficient 
severity.  To  whatever  cause  these  lynchings  may  be  due, 
it  is  to  be  hoped  that  some  more  regular  means  will  be 
found  of  administering  justice  to  the  offender. 

463.  Other  State  Activities.  —  From  the  foregoing  para-  state°activ- 
graphs  we  can  gain  some  idea  of  the  relation  of  the  law  of  ity. 


382 


The  American  Federal  State 


Some  phases 
not  consid- 
ered. 


Centraliza- 
tion of  ad- 
ministration. 

Fairlie,  Cent, 
of  Admin- 
istration in 
N.  Y..  192- 
207. 


Receipts  and 
expenditures. 

Bryce,  356- 
365. 


one  state  to  that  of  the  others,  and  some  conception  of  the 
methods  used  in  the  performance  of  state  duties.  The 
subjects  treated  cover  a  very  small  part  of  the  field  of 
activity  of  the  states,  but  indicate,  in  a  general  way,  how 
the  states  and  the  localities  work  together.  Among  other 
topics  that  are  naturally  considered  phases  of  state  activity 
are  those  of  charity  (§§  482-486),  suffrage  and  elections 
(chapter  XXII),  most  of  our  legal  rights  and  remedies 
(chapter  XXIV),  the  chief  problems  of  taxation  (chapter 
XXV),  and  most  industrial  and  labor  questions  (chapter 
XXVII). 

Some  of  those  which  are  not  separately  treated  deal  with 
health,  immigration,  irrigation,  public  works,  and  many 
others.  When  we  realize  that  almost  nothing  has  been  said 
about  the  private  and  criminal  laws  made  by  the  state  legis- 
lature, but  that  we  have  confined  ourselves  to  general  meth- 
ods of  administration  and  supervision,  the  scope  of  the 
states'  work  is  seen  to  be  far  from  limited. 

464.  Increase  of  State  Activity.  —  A  marked  increase  in 
the  number  of  functions  now  performed  by  the  government 
which  were  formerly  in  the  hands  of  individuals,  is  seen  in 
every  connection  with  the  above  subjects.  Two  features  of 
the  increase  are  particularly  prominent :  one,  that  the  state 
and  local  governments  are  all  doing  more,  and  doing  it 
better,  than  in  earlier  periods;  second,  that  the  states  are 
beginning  to  introduce  central  machinery  to  supervise  or 
even  control  local  agents,  bringing  about  greater  uniformity 
and  more  perfect  administration.  Some  states  have  gone 
much  farther  than  others,  especially  in  centralizing  their 
administration;  but  all  have  done  something  in  this  direc- 
tion and,  from  indications,  will  do  much  more. 

465.  State  Finance. — The  work  of  the  states  does  not 
call  for  the  excessive  expenditure  of  money  that  character- 
izes the  national  government,  with  its  large  civil  and  mili- 
tary list,  or  the  cities,  with  their  costly  improvements.  The 
funds  needed  are  raised  principally  from  the  general  prop- 
erty tax  (§§  587-590),  partially  from  corporation  taxes  and 


Some  Phases  of  State  Activity  383 

miscellaneous  sources.  More  is  spent  for  education  than 
for  anything  else,  about  one-third  of  the  whole.  The  rest 
is  divided  among  the  state  government,  state  charities,  ref- 
ormation, etc. 


QUESTIONS  AND   REFERENCES 

Uniformity  and  Diversity  in  State  Law  (§§  438-444) 

a.  On  the  subject  of  divorce  in  general,  see  Wright,  Practical  Sod' 
ology,  159-176;  Woolsey,  Divorce  and  Divorce  Legislation,  chap.  V.; 
Wilcox,  The  Divorce  Problem.  Arguments  for  and  against  a  national 
divorce  law  are  given  by  Stewart,  G.  A.,  in  Popular  Science  Monthly, 
XXIII  (1883),  224-237,  and  by  Phelps,  E.  J.,  in  Forum,  VIII  (1889), 
349-364- 

1.  Is  it  preferable  to  bring  about  necessary  uniformities  in  law  by 
interstate  codes  or  by  transferring  the  subject  from  the  state  to  the 
nation  ? 

2.  Can  the  difficulties  in  the  regulation  of  corporations  be  met  by 
each  state  for  itself  by  the  adoption  of  suitable  laws  ?  Would  a 
national  law  supplementing  those  of  the  states  requiring  "  interstate  " 
corporations  to  fulfil  certain  requirements  in  all  of  the  states  be  of  any 
value  ? 

3.  Why  might  a  national  divorce  law  uniformly  applied  "  not  have 
so  favorable  a  result  as  desired  "  ? 

4.  If  the  various  localities  in  the  state  maintain  their  local  "  self- 
government,"  largely  by  being  able  to  administer  state  laws  loosely 
or  literally  (§  469),  is  it  not  desirable  to  have  as  great  diversities  in 
state  law  as  at  present  ?  Could  national  laws  on  these  subjects,  ad- 
ministered as  national  laws  are  now,  be  adapted  to  differing  local 
conditions  ? 

i.  What  are  the  lowest  ages  of  consent  for  persons  desiring  to 
marry  ?  Do  many  states  have  such  paltry  requirements  ?  What  is 
ihe  highest  age  of  consent  for  boys  ?  for  girls  ?  How  many  states 
demand  the  consent  of  parents  for  children  not  of  legal  age  ?  What 
proportion  ask  for  no  license  ?     (Tribune  Almanac.) 

ii.  What  states  do  not  require  previous  residence  for  persons  de- 
siring divorce  ?  What  is  the  longest  residence  required  by  any  state  ? 
Do  most  permit  the  parties  to  remarry  ?  If  so,  at  once  ?  (Tribune 
Almanac.) 


384  The  American  Federal  State 


The  Public  Schools  (§§  445-450) 

1.  Why  should  schools  be  supported  by  the  public  and  not  par- 
tially by  the  public  and  partially  by  those  benefited  ? 

2.  Name  the  benefits  gained  by  having  teachers  examined  by  the 
state  board  of  education;  by  the  county  board;  by  the  school  trus- 
tees.    Give  objections  to  each. 

i.  How  is  your  state  superintendent  chosen  ?  For  what  term  ? 
What  powers  has  he  ?  Give  his  name,  and  tell  what  school  work  he 
did  before  appointment  to  the  position. 

ii.  Have  you  a  state  board  of  education  ?  If  so,  of  how  many 
members  ?  How  selected  ?  Does  the  method  of  choice  guarantee 
men  of  the  highest  capacity  ? 

iii.  Does  the  county,  township,  or  district  system  prevail  in  your 
state  ?  What  county  officials  have  you  ?  Do  they  give  examinations  ? 
Have  any  of  them  ever  visited  your  school  ? 

iv.  How  many  members  are  there  on  your  school  board  ?  For  how 
long  are  they  elected  ?  Do  all  go  out  of  office  at  the  same  time  ?  Is 
it  the  custom  to  reelect  these  officials  ? 

V.  What  proportion  of  your  school  fund  is  collected  by  the  local- 
ity? by  the  county?  by  the  state?  Is  any  attempt  made  to  relieve  the 
poorer  sections  ?  To  raise  the  standard  of  the  schools  in  distributing 
the  money  ? 

The  Liquor  Problem  (§§  451-457) 

a.  Different  views  of  the  success  of  prohibition  are  given  by  Dow, 
N.,  in  Forum,  III  (1887),  39-49;  Patten,  S.  N.,  in  A.  A.  A.,  II 
(1890),  59  et  seq.;  Koren,  in  Liquor  Problem,  on  "Maine,"  22-95; 
Wines,  in  Liquor  Problem,  on  "  Iowa,"  96-140. 

1.  WTiat  classes  of  men  are  individualists  (§  27)  when  the  control 
of  the  sale  of  liquor  is  being  considered  ?  Has  the  constitutionality 
of  "  state-wide  "  prohibition  been  upheld  by  the  courts?  Is  prohibi- 
tion an  infringement  of  personal  liberty  ?  Give  reasons  for  your  last 
answer. 

2.  Which  system  of  liquor  control  do  you  particularly  favor,  and  on 
what  grounds  ?  Under  license,  what  regulations  are  most  essential 
in  preserving  law  and  order  ? 

i.  Has  your  state  ever  tried  prohibition  ?  For  how  long  ?  With 
what  success  ?     What  other  systems  have  you  tried  ? 

ii.  Have  you  high  or  low  license  now  ?  With  or  without  local 
option  ?    Judging  from  the  experience  of  your  locality,  what  provi- 


Some  Phases  of  State  Activity  385 

sions  of  law  are   most  essential  ?    With  what  success  is  your  law 
administered  ? 


Punishment  and  Reformation  (§§  458-465) 

1.  Compare  the  number  of  capital  crimes  and  methods  of  punish- 
ment for  others  in  England  (1600),  Massachusetts  (1650),  the  United 
States  (1780),  the  United  States  (1830),  and  the  United  States  now. 

2.  Trace  the  history  of  punishment  for  debt  during  the  past  two 
centuries,  noticing  former  methods,  abolition  of  imprisonment,  and 
growth  of  homestead  exemptions,  and  specifying  in  regard  to  the 
latter  at  the  present. 

3.  What  is  the  connection  between  the  development  of  democracy 
and  the  substitution  of  mild  for  severe  forms  of  punishment,  and  why 
should  there  be  any  connection  ?  Has  democracy  had  anything  to  do 
with  the  introduction  of  reformatory  instead  of  repressive  methods  ? 


9C 


Almost  all 
laws  are 
made  by  the 
legislature. 


CHAPTER  XX 

TOWN  AND  COUNTY  GOVEBINMENT 

General  References 

Wilson,  The  State,  §§  1 209-1 259. 

Fiske,  Civil  Government,  16-98.     Deals  chiefly  with  origins. 

Macy,  Civil  Government,  36-1 14.    The  four  types. 

Goodnow,  Comparative  Administrative  Law,  I,  178-192. 

Ford,  W.  C,  American  Citizen's  Manual,  53-84. 

Bemis,   "Local   Government    in   Michigan  and  the  Northwest,"   in 

/.  H.  U.  S.,  I,  V. 
Bemis   (ed.),  "Local  Government  in  the  South  and  Southwest,"  in 

/.  H.  U.  S.,  XI,  xi,  xii. 
Shaw,  Ingle,  and  others,  on  particular  states,  in  /.  H.  U.  S. 
Howard,  Local  Constitutional  History  in  the  United  States,  especially 

438-470.    The  highest  authority  on  the  subject. 
International  Congress  of  Charities,  Report  on  The  Organization  of 

Charities  (1893),  43-134- 
Warner,   American    Charities.      Discusses   fully   private   and   public 

methods  and  the  relation  of  private  to  public  work. 

466.  Legislative  Centralization  of  the  State.  —  The  posi- 
tion of  the  localities  in  the  states  is  a  peculiar  one,  because, 
while  they  are  theoretically  mere  subdivisions  of  the  state 
for  purposes  of  government,  in  reality  a  large  part  of  the 
states'  work  is  done  through  their  officials.  We  may 
express  the  relation  of  the  states  to  the  localities  very 
briefly  by  saying  that  the  legislative  power  of  the  state 
is  very  highly  centralized;  while  the  administrative  power 
is  just  as  highly  decentralized.  Now  this  statement  re- 
quires a  little  explanation.  How  is  the  legislative  power 
centralized?  In  this  way.  Practically  all  of  the  laws 
(national   laws  not   being   considered)  under  which  we 

386 


Town  and  County  Government  387 

live  are  made  by  the  state  legislature,  most  of  the  remainder 
being  framed  by  the  constitutional  convention  which,  as 
we  noticed  (§  422),  has  quite  a  little  to  do  with  the  laws 
of  most  importance.  Take  the  single  subject  of  education. 
We  have  just  seen  that  the  state  prescribes  the  form  and 
powers  of  the  school  organization,  i.e.  whether  the  county, 
district,  or  town  has  charge  of  the  schools,  how  many  com- 
missioners are  chosen  in  each,  what  the  minimum  length 
of  the  school  year  is,  what  rights  these  localities  have  to 
raise  money  for  the  support  of  the  schools,  and  a  great 
many  other  details.  The  school  trustees  or  the  county 
board  may  make  some  supplementary  regulations,  but  a 
casual  examination  of  the  state  school  law  will  show  you 
that  the  state  legislates  for  the  schools. 

467.  Administrative  Decentralization.  —  We  would  natu-  There  are 
rally  suppose  that  if  the  state  makes  the  laws,  the  state  will  ^^^  ^.*^"^ 

.  adminisfra- 

also  execute  them;  but  this  is  not  done.     Almost  all  the  tive  officials. 

laws  of  the  state  are  carried  out,  in  other  words  are  admin- 
istered by  local  officials  over  whom  the  state  has  no  control 
whatever.  Even  the  judges  of  the  lower  state  courts,  who 
deal  with  state  laws  almost  exclusively,  are  elected  by  the 
voters  of  counties  or  districts,  and  are  responsible  not  to 
any  central  authority,  but  to  the  voters  of  that  territory,  at 
the  next  election.  If  it  is  really  desired  to  have  the  law 
uniformly  interpreted  throughout  the  commonwealth,  what 
guarantee  have  we  for  those  laws  involved  in  suits  that  are 
not  appealed  to  a  single  state  court  ?  The  same  freedom 
from  control  marks  the  sheriffs,  local  health  officers,  in 
fact,  all  officials  for  the  localities.  The  bulk  of  their 
duties  may  relate  to  state  law,  but  they  may  interpret  that 
law  to  suit  the  voters  of  their  district.  They  administer 
it  or  they  neglect  it  in  the  same  way;  and  so  long  as  their 
"constituents"  do  not  object,  the  state  authorities  cannot 
force  them  to  do  it  uniformly  throughout  the  state,  as  we 
observed  in  connection  with  anti-liquor  legislation.  Per- 
haps we  can  see  the  effects  of  administrative  decentraliza- 
tion in  a  truer  light  by  the  use  of  an  illustration.     Suppose 


388  The  American  Federal  State 

that  the  tariff  acts  passed  by  Congress  were  administered 
by  local  officials  not  responsible  to  the  President.  Let  us 
assume  that  the  tax  collectors  of  the  various  ports  of  entry 
have  charge  of  assessing  and  collecting  the  duties  upon 
goods  imported.  Now,  if  the  President  cannot  compel  a 
collector  to  do  his  duty  except  by  bringing  him  before  a 
court  for  some  offence  recognized  by  law,  we  can  readily 
see  that  one  collector  will  be  more  lax  than  another,  and 
confusion  will  follow;  but  the  greatest  loss  will  be  to  the 
national  government,  which  will  have  been  deprived  of 
much  of  its  power,  because  it  could  not  properly  control 
its  administrative  agents.  To  the  national  government  this 
would  be  an  irreparable  injury,  because  its  legislative  power 
is  strictly  limited,  and  it  would  tend  to  degenerate  into  a 
government  like  that  under  the  Confederation,  in  fact, 
would  never  have  been  able  to  lift  itself  out  of  its  degraded 
condition  during  that  period  if  its  other  laws  had  been 
executed  in  the  same  way. 
Local  gov-  468.  How  the  Dangers  of  Administrative  Decentralization 

erament  may  jj^yg  jjgen  avoided.  —  Why,  then,  has  the  state  not  suffered 

be  modified       ....  -si-  -u    •  /   \  t'i. 

or  abolished  m  a  Similar  manner?  For  very  obvious  reasons,  (i)  Ihe 
by  the  state,  state  (perhaps  through  the  legislature,  but  usually  in  the 
constitution)  creates  the  local  political  divisions  and  endows 
them  with  certain  powers  and  rights.  It  may  abolish  them 
or  change  the  methods  of  administration  any  time  it  pleases, 
in  fact,  its  control  over  the  localities  is  as  absolute  as  that 
exercised  by  any  political  power  in  existence.  If  the  state, 
that  is,  the  people  of  the  state,  felt  that  administrative 
decentralization  interfered  with  its  work  to  such  an  extent 
that  its  power  was  being  nullified,  it  could  substitute  another 
kind  of  administration  for  that  in  use.  But  the  failure  of 
the  state  to  make  such  a  change  is  evidence  that  adminis- 
trative decentralization  has  not  proved  especially  dangerous, 
though  of  course  it  does  not  account  for  the  comparative 
success  of  a  theoretically  unsatisfactory  system.  (2)  The 
reason  that  a  fair  degree  of  uniformity  in  administering  the 
laws  has  been  preserved  is  the  control  which  the  legislature 


Town  and  County  Government 


389 


has  over  the  local  administration.  This  was  formerly  exer- 
cised in  several  ways;  namely,  by  appointing  and  removing 
local  officials,  by  making  special  laws,  and  by  going  into 
great  detail  in  each  law,  telling  just  how  it  should  be  ad- 
ministered. Now  the  chief  dependence  is  placed  upon  the 
last  method,  for  even  county  sheriffs  are  chosen  by  the  coun- 
ties, while  local  and  special  laws  are  ordinarily  forbidden 
by  the  state  constitution. 

There  are,  however,  disadvantages  in  the  legislative  con- 
trol of  local  administration,  and  the  tendency  during  recent 
years  has  been  toward  creating  state  boards  and  executive 
officers,  as  shown  in  chapter  XIX,  in  order  to  get  better 
and  more  uniform  results. 

469.  "Home  Rule"  in  Rural  Districts. — What  may  be 
spoken  of  as  the  "  home  rule  "  of  the  localities  consists  of 
three  principal  things:  (i)  The  right  of  each  political 
division  to  decide  matters  of  local  interest  for  itself;  (2)  ex- 
emption from  special  legislation;  and  (3)  the  privilege  of 
choosing  all  local  administrative  officials. 

(i)  The  rights  belonging  to  the  first  class  do  not  cover 
even  all  of  the  local  ordinances  that  a  county  would  natu- 
rally make;  but,  on  the  other  hand,  in  a  few  states  county 
boundaries  are  not  changed,  nor  new  counties  erected,  nor 
county  seats  moved  except  by  permission  of  the  county 
board  and  the  voters.  The  last  twenty-five  years  have 
brought  the  counties  more  rights  of  this  kind  at  the  expense 
of  the  legislatures. 

(2)  As  most  of  the  constitutions  prohibit  the  passage  of 
laws  that  apply  to  but  one  county  or  town,  the  localities  are 
thus  freed  from  considerable  interference  unless  the  legis- 
lature makes  "general"  laws,  which  divide  the  cities  and 
counties  into  so  many  classes  that  the  laws  are  really  special. 
If  the  courts  uphold  these  laws  as  constitutional,  as  some 
of  them  have  done,  the  constitutional  prohibition  is  of  no 
value. 

(3)  By  the  election  of  all  of  the  officials  charged  with  the 
administration  of  law  within  the  county  or  town,  the  locali- 


Local  offi- 
cials are  con- 
trolled in 
some  ways 
by  the  legis- 
lature. 


Nature  of 
home  rule. 


Constitution- 
al rights  in 
local  matters. 

Oberholtzer, 
Referendum, 
227-24a 


Freedom 
from  local 
and  special 
legislation. 

Cleveland, 
Democracy, 
348-351- 


390 


The  American  Federal  State 


Election  of 
all  local  ad- 
ministrative 
officials. 

De  Tocque- 
ville,  Democ- 
racy in 
Amer.,  I, 
Z07-122. 


Town, 

county,  and 
compromise 
systems. 

Hinsdale, 
§{  716-731. 


ties  are  able  to  have  the  law  applied  as  they  want  it.  In 
practice,  that  gives  them  a  great  deal  of  "local  option," 
permitting  them  to  say,  within  certain  limits,  whether  a 
state  law  shall  be  rigidly  or  leniently  enforced;  so  that  it 
makes  less  difference  to  them  that  the  state  legislature  inter- 
meddles with  their  affairs,  since  they  are  allowed  to  be 
under  officers  of  their  own  choosing  and  do  somewhat  as 
they  please  in  carrying  out  state  laws.  The  objections  to 
this  method,  because  the  state  laws  which  should  be  uni- 
formly administered  cannot  be,  are  without  any  doubt  very 
serious;  but  the  advantages,  nevertheless,  outweigh  the 
defects.  The  right  to  participate  in  the  choice  of  so  many 
persons  quickens  an  interest  in  government,  and  proves  an 
educatidn  of  the  highest  value  in  every  community;  while 
the  right  to  ignore  the  most  obnoxious  features  of  laws 
makes  improbable  that  antagonism  to  government  which 
so  quickly  undermines  all  regard  for  law  and  order.  De 
Tocqueville,  accustomed  to  a  system  where  there  was  more 
local  legislative  power  than  in  ours,  but  constant  supervision 
of  local  officials,  accompanied  by  arbitrary  power  to  remove 
them,  is  unsparing  in  his  praise  of  the  "political"  advan- 
tages of  administrative  decentralization. 

470.  Types  of  Local  Government  in  the  United  States.  — 
The  unit  of  local  government  in  the  United  States  is  either 
the  county  or  the  town.  Where  the  town  is  most  impor- 
tant, it  is  customary  to  speak  of  local  government  as  town 
government.  If  the  town  has  few  powers,  or  does  not  exist 
at  all,  we  call  it  county  government;  and  where  the  coun- 
ties are  subdivided  into  townships,  we  speak  of  the  com- 
promise system  of  local  government.  In  the  third,  or 
compromise  type,  the  township  varies  in  importance  from 
a  local  district  with  limited  financial  and  judicial  powers 
to  one  which  holds  its  town-meeting,  elects  several  town 
officials,  and  transacts  considerable  business;  but  in  no 
state  using  the  compromise  system  does  the  town  play  a 
part  in  local  government  equal  to  that  of  the  county  in  the 
same  states.     Speaking  of  the  United  States  at  large,  local 


Town  and  County  Government 


391 


government  means  really  the  government  of  the  county, 
because  outside  of  New  England  the  smaller  local  districts 
are  insignificant  when  compared  with  the  county. 

In  the  six  New  England  states  the  town  is  the  unit  for  local  govern-  The  extent  of 
ment.  In  the  former  slave  states  townships  are  almost  unknown,  and  *°^^"  govem- 
the  local  area  smaller  than  the  county  is  the  school  district,  which  has 
more  powers  the  farther  west  and  northwest  we  go,  while  the  Border 
states  have  a  local  government  of  the  county  type  with  a  constant  ten- 
dency to  give  smaller  districts  more  and  more  duties.  New  York  and 
Michigan  have  townships  with  town  meetings,  which  possess  consider- 
able vigor ;  but  in  all  of  the  rest  of  the  states,  while  townships  exist, 
they  rarely  ever  have  much  to  do  with  the  local  government,  and  may 
not  even  be  public  corporations. 


471.  Historic  Changes   in   the   New   England  Town.  — 

The  reasons  that  led  the  Puritan  colonies  to  adopt  the  town  form  of 
government  have  been  considered  (§  59),  and  the  nature  of  that  gov- 
ernment briefly  treated  (§§  60-62).  In  its  methods  and  general  char- 
acter the  town  meeting  is  little  different  from  its  seventeenth-century 
prototype,  but  in  some  ways  it  is  radically  unlike  the  meetings  of  two 
hundred  years  ago.  Then  the  meetings  were  small,  and  every  member 
had  a  definite  interest  in  them.  Now  most  of  the  towns  are  large,  sev- 
eral having  ten  thousand  or  more  inhabitants,  many  of  the  town  meet- 
ings being  in  consequence  of  too  great  a  size  to  permit  more  than  a  few 
leaders  to  exercise  any  great  influence.  A  change  has  also  taken  place 
in  the  character  of  the  population,  caused  by  the  immigration  of  many 
foreigners,  especially  French-Canadians,  the  foreign  element  increasing 
at  a  much  more  rapid  rate  than  the  native  population.  While  it  is  a 
well-known  fact  that  the  town  meetings  have  lost  considerable  in  value 
by  these  changes,  nevertheless  there  is  no  part  of  the  country  where 
the  local  government  is  as  vital  as  it  still  is  in  New  England. 

472.  The  Town  Meeting. — The  town  meetings  are  held 
ordinarily  but  once  a  year,  though  they  may  be  called  more 
often.  Notice  is  always  given  by  the  selectmen,  stating 
when  the  meeting  will  be  held  and  what  business  will  come 
before  it.  Gathering  at  the  time  appointed  in  the  town 
hall,  or  some  other  public  building,  the  voters  select  a 
chairman,  called  a  moderator,  and  proceed  to  act  upon  the 
reports  of  all  town  officers  for  the  succeeding  year.  The 
chief  duties  consist  in  the  election  of  the  new  officials,  who 


Towns  are 
larger  and 
foreigners 
more  nu- 


Bryce,  406- 
408. 


Sessions  and 
business. 

Clark,  Out- 
lines  of 
Civics,  178- 
186. 

Howard, 
Local  Const' I 
Hist.,  225- 
229. 


392 


The  American  Federal  State 


Selectmen, 
clerk,  school 
trustees,  etc. 

Fiske,  Civil 
Gov't,  20-24. 


Government 
and  relation 
to  the  county. 

Macy,  Civil 
Gov't,  61-65, 
70-72. 


are  usually  quite  numerous,  and  the  appropriation  of  funds 
for  the  general  work  of  the  town  and  for  special  improve- 
ments. It  is  interesting  to  see  how  carefully  all  details  of 
town  government,  particularly  in  matters  of  finance,  are 
regulated  by  the  meeting,  so  that  it  never  surrenders  to  its 
public  servants  the  real  control  of  its  own  affairs. 

473.  Town  Officials.  — The  principal  officials  for  execut- 
ing the  wishes  of  the  town  meeting  are  the  selectmen,  who 
vary  in  number  from  three  to  nine,  and  are  now  usually 
chosen  for  a  term  of  three  years.  They  take  general  charge 
of  town  business  and  represent  it  in  the  courts  or  in  deal- 
ing with  the  county  and  the  state.  The  school  committee 
is  composed  ordinarily  of  three  members,  chosen  for  as 
many  years,  with  quite  full  powers  over  the  selection  of 
superintendents,  teachers,  and  text-books.  All  town  records 
are  kept  by  the  clerk,  and  moneys  are  deposited  with  the 
treasurer,  the  taxes  being  levied  by  the  assessor  and  gath- 
ered by  the  tax  collector.  Very  few  towns  are  without  over- 
seers of  the  poor  and  health  officers,  though  the  duties 
usually  assigned  to  those  officers  may  be  left  to  the  select- 
men. There  are  usually  several  other  officials,  also,  chosen 
at  the  town  meeting. 

474.  The  New  York  Town.  —  The  town  in  New  York  and 
in  the  states  and  parts  of  states  that  have  adopted  the  New 
York  system  is,  like  that  of  New  England,  a  public  corpora- 
tion, i.e.  the  citizens  living  within  its  boundaries  are  recog- 
nized as  constituting  a  body  corporate  with  the  right  to 
hold  and  dispose  of  property,  to  sue,  and  to  levy  taxes.  It 
has  its  town  meeting,  which  is  held  on  a  day  designated 
by  the  county  board  of  supervisors,  this  one  fact  illustrating 
the  minor  importance  of  the  town  in  these  states.  There 
are  no  officials  corresponding  in  power  to  the  selectmen, 
but  there  is  a  supervisor,  with  some  financial  duties,  who 
represents  the  town  on  the  county  board.  He  is  therefore 
more  of  a  county  than  a  town  official.  The  town  also  has 
a  clerk,  assessor,  constables,  besides  overseers  of  the  poor 
and  highway  commissioners. 


Town  and  County  Government  393 

475.  The  Township  in  the  West.  —  Except  in  Michigan,    Conditions 
where  the  town  was  directly  implanted  by  the  early  settlers  ^^'^cting  its 

.,,,,,,  form  and 

from  New  York,  town  government  in  the  West  has  been  of  )K)wers. 
slow  growth.     The  conditions  which  led  to  its  adoption  lu  ^jjjq^  jht 
New  England  (§§  59,  62)  have  been  absent,  because  agri-   state, 
culture  was  the  sole  occupation  at  first  and  the  population   ^^  1222-1233. 
was  scattered.     Professor  Howard,  in  his  invaluable  book  Howard, 
on  Local  Constitutional  History  in  the  United  States,  shows  ^^^  ^f^^ 
conclusively  that  county  government  was  everywhere  uni-   156. 
versal  for  economic  reasons,  and  that  the  institutions  of  the 
states  from  which  most  of  the  immigrants  came  had  com- 
paratively little  influence.    That  they  did  exert  some,  how- 
ever, is  shown  by  the  experience  of  Illinois,  the  northern 
part  of  which  was  settled  by  people  from  New  England  and 
the  Middle  states,  while  the  southern  half  was  occupied 
by  Virginians  and  Kentuckians.     County  government  was 
the  rule  until  farms  became  fairly  numerous  and  villages 
sprang  up.     Then  the  northern  part  of  the  state  began 
an  agitation  for  a  town  organization,  the  Southerners  offer- 
ing serious  opposition.      The  result  was  a  compromise, 
which  allowed  any  county  to  adopt  the  township  system 
when  its  inhabitants  desired  it.     The  northern  half  im- 
mediately began  to  have  townships,  and  now  almost  every 
county  in  the  state  is  thus  subdivided.     The  experience 
of  Nebraska  shows  that  the  character  of  the  local  govern- 
ment depends  more  on  the  density  of  the  population  than 
on  their  nativity,  because  their  county  government  alone 
existed  till  1883  when  the  more  populous  counties  suc- 
ceeded in  obtaining  permission  to  create  townships  when 
desired. 

As  already  suggested  (§  187),  the  township  in  the  West  School  dis- 
urew  up  around  the  schoolhouse,  and  has  been  developed  *"^'  ** """ 

°  ^  ,  1  ,  of  local 

largely  according  to  the  educational  needs  of  the  commu-  government. 

nity.     Town  meetings  are  rare,  the  townships  are  not  even  g^  .    . 

public  corporations  in  many  states,  while  the  public  officials  j.  H.  u.  s., 

are  often  limited  to  those  with  judicial,  police,  school,  and,   ^'  ^'  ^'"''^ 

possibly,  financial  duties. 


394 


The  American  Federal  State 


A  judicial 
and  financial 
subdivision 
of  the  state. 

Howard, 
ibid.,  458- 
464. 


The  chief 
local  unit  of 
government. 

Hinsdale, 

Bemis,  in 
y.  H.  U.  5.. 

XI,  459-463- 

Howard, 
464-470. 


Subdivisions 
of  the 
county. 

Howard, 
230-234. 


General  simi- 
larity of  the 
counties. 


476.  The  New  England  County.  —  Everywhere  the  county, 
like  the  town  at  its  best,  is  a  public  corporation  clothed 
with  power  to  sue  and  to  be  sued,  to  erect  buildings  for 
public  use,  to  hold  other  property,  and  to  assess  and  collect 
taxes  to  a  certain  amount.  In  New  England  the  county  is 
charged  with  fewer  duties  than  elsewhere,  and  in  Rhode 
Island  it  exists  solely  for  judicial  purposes.  The  chief 
authority  is  a  board  of  commissioners,  as  in  over  two- 
thirds  of  the  states;  but  they  are  concerned  chiefly  with  the 
highways  and  certain  questions  of  finance.  Other  officials 
are  the  sheriff,  treasurer,  and  the  justices  of  the  peace. 

477.  The  Southern  County.  —  In  the  South  the  county, 
oddly  enough,  is  but  little  better  developed  than  in  the  North- 
east, having  less  work  to  perform  than  the  county  of  the 
West  and  Northwest.  Some  of  the  states  still  retain  the 
justices  of  the  peace  as  the  administrative  and  judicial 
board,  giving  them  control  of  most  of  the  local  affairs. 
More  elect  from  three  to  five  commissioners,  who  usually 
have  fuller  powers  than  the  justices,  though  they  do  not 
form  a  court.  One  state  (Georgia)  centres  these  functions 
in  one  official,  called  the  Ordinary.  Other  duties  are  per- 
formed by  a  sheriff,  a  county  clerk,  a  treasurer,  assessors, 
and  tax  collectors,  and  school  officials.  The  county  always 
has  sole,  or  almost  sole,  control  of  roads,  bridges,  prisons, 
schools,  and  the  poor,  and  raises  all  the  money  needed  for 
all  of  these. 

Subdivisions  of  the  county  exist  in  all  of  the  states,  usu- 
ally in  the  form  of  school  districts,  which  are  rarely  self- 
taxing  or  with  full  power  of  administration.  After  the  War 
of  Secession,  the  reconstruction  legislature  tried  to  intro- 
duce into  Virginia,  and  one  or  two  states  farther  south,  a 
township  form  of  government,  but  the  attempts  to  use  it 
were  soon  abandoned. 

In  Louisiana  the  division  corresponding  to  the  county  is 
called  the  parish. 

478.  The  County  in  General ;  County  Board.  —  It  is  impos- 
sible to  describe,  with  any  fulness,  a  county  of  any  state 


Town  and  County  Government  395 

and  have  the  description  apply  to  many  others;  but  there 
is,  nevertheless,  quite  a  little  similarity  the  country  over. 
Although  the  statements  made  below  apply  especially  to 
the  middle  West,  about  the  same  officials,  with  much 
the  same  powers,  are  found  in  all  sections,  even  in  New 
England. 

The  legislative  body,  if  we  may  so  dignify  the  board  that  county 
makes  the  county  ordinances,  is  composed,  in  four-fifths  board:  elec- 

,     ,  ,  .      .  ,  f         •  1  <'on  and 

of  the  states,  of  commissioners,  three  or  five  in  number,   powers, 
elected  for  two,  three,  or  four  years  by  the  voters  of  dis-  „        . 
tricts  into  which  the  county  is  divided.      Among  their  438-450.' 
duties  is  that  of  supervising  all  the  other  county  officers, 
particularly  those  who  handle  the  funds.      They  usually 
have  charge  of  laying  out  townships  and  school  districts, 
the  care  of  roads,  of  the  poor,  and  of  public  buildings  in 
general.     They  ordinarily  determine  the  amount  of  money 
to  be  raised  for  expenses  within  the  county,  and  may  act 
as  a  board  of  equalization  to  hear  complaints  of  persons 
who  believe  themselves  too  heavily  assessed.     They  may 
also  have  considerable  power  of  appointment,  though  rarely 
of  removal. 

479.  Chief  Officials  of  the  County. — The  principal  single  The  sheriff, 
officer  of  the  county  is  the  sheriff  who  retains  but  few  of   Howard 
the  duties  belonging   to   his   powerful   prototype   of   the  450-4SS- 
Middle  Ages.     In  a  sense,  he  is  the  representative  of  the 
state  in  the  county;  but  owing  to  the  impossibility  of  re- 
moving him,  except  in  a  few  instances,  he  is  a  county 
rather  than  a  state  executive  officer.     The  maintenance  of 
peace  and  order  are  in  his  hands,  while  the  execution  of 
all  decrees  and  decisions  of  all  but  the  lowest  courts  form 
his  chief  duty. 

Next  in  power  to  the  sheriff  is  the  person  who  audits  cierk  and 
claims  against  the  county.     This  work  may  be  assigned  to  ^"'^"o'". 
a  special  official,  called  the  auditor,  but  in  many  states  it 
is  left  to  the  county  clerk.    The  county  clerk  is  also  charged 
with  keeping  the  records  of  the  county  board  and  courts, 
and  he  may  have  duties  connected  with  elections. 


396 


The  American  Federal  State 


School  super- 
intendent. 


Assessors. 

Howard, 
453-458. 


Treasurer, 
coroner,  at- 
torney, pub- 
lic adminis- 
trator, and 
recorder. 


An  undevel- 
oped munici- 
pality. 

Goodnow, 
Comp. 
Admin.  Law, 

I,  218-223. 


The  head  of  the  schools,  called  either  a  commissioner 
or  a  superintendent,  has  general  supervision  of  all  but  city 
schools.  He  usually  apportions  the  money,  if  any  is  ex- 
pended by  the  state,  for  schools,  visits  them  at  stated  peri- 
ods, and  may  give  teachers'  examinations.  Occasionally 
he  has  some  power  of  selecting  teachers  and,  more  fre- 
quently, that  of  dismissal.  In  some,  or  all,  of  his  duties 
he  may  be  aided  by  a  county  school  board,  of  which  he  is 
the  executive  officer. 

480.  Other  County  Officials.  —  When  there  is  an  assessor, 
as  in  a  few  states,  the  great  opportunities  for  exercising  his 
discretion  in  making  an  assessment  high  or  low  permit 
him  to  wield  considerable  power;  but  the  almost  universal 
custom  is  to  accept  the  estimates  of  local  assessors  and  have 
these  estimates  equalized  by  some  county  authority,  prefer- 
ably the  county  board.  The  collection  of  the  taxes  is  often, 
but  less  frequently,  left  to  the  towns. 

The  treasurer  has  charge  of  the  money  of  the  county, 
and  is  obliged  to  give  a  very  heavy  bond,  which  is  forfeited 
if  he  appropriates  any  of  the  funds  to  his  own  use.  The 
coroner  investigates  the  causes,  in  case  of  violent  death, 
and,  to  aid  him,  summons  a  jury,  usually  of  twelve  men, 
who  hear  evidence  and  render  a  decision.  The  attorney 
acts  both  as  a  legal  adviser  and  as  a  public  prosecutor  to 
protect  the  county  when  a  crime  is  tried  in  a  county  court. 
There  are  often  public  administrators,  who  take  charge  of 
the  estates  of  persons  dying  without  wills;  recorders,  who 
keep  a  record  of  all  mortgages,  real  estate  transfers,  etc. ; 
and  land  commissioners,  who  look  after  surveys. 

481.  Incorporated  Villages.  —  Besides  the  counties,  towns, 
and  cities,  there  are  incorporated  villages  which  are  in- 
cipient municipalities  and  play  quite  a  part  in  local  gov- 
ernment. As  a  rule,  incorporation  does  not  take  place 
except  at  the  request  of  a  majority  of  the  voters  within  the 
villages.  This  is  done  under  general  statutes,  which  pre- 
scribe the  method  of  action,  the  officials  permitted,  the 
date  of  village  elections,  and  the  limit  of  tax  rate.     The 


Toivn  and  County  Government  397 

special  act  of  incorporation  states  also  the  boundaries,  as 
well  as  the  number,  term,  pay,  and  powers  of  ofificials,  if 
not  already  specified  in  the  law.  There  are  usually  trustees, 
who  may  make  certain  kinds  of  by-laws,  a  clerk,  a  treasurer, 
an  assessor,  a  constable,  overseers  of  the  poor,  and  perhaps 
others. 

482.  Functions  of  Local  Government.  — Three  of  the  sub-  Variety  of 
jects  to  which  the  attention  of  local  officials  is  greatly  ^""ctions. 
directed  have  been  treated  in  the  previous  chapter.     From  Bryce,  413- 
what  has  been  said,  the  freedom  left  to  the  localities  in  ^^  ' 
their  administration  of  the  school,  liquor,  and  penal  laws 

shows  that  in  connection  with  these  three  phases  of  state 
activity  the  work  done  by  the  counties  and  the  towns  is  no 
insignificant  one.  Two  other  functions  of  the  localities 
deserve  consideration,  both  of  which  are,  in  a  sense,  phases 
of  state  activity,  but  with  which  the  state  has  less  to  do  than 
even  with  education.  One  of  these  is  the  subject  of 
charities,  the  other  that  of  roads. 

483.  Public  Charities.  —  The  care  of  the  poor  and  of  the  Limits  of 
defective  classes,  unlike  that  of  criminals,  is  even  yet  left,   p^^^''^ 

.        .  T,   ,  , .         ,       .        chanty. 

to  a  large  extent,  to  private  organizations.     Public  charity 
occupies  a  much  larger  place  in  the  work  of  government  Anur^chari- 
than  a  hundred  years  ago,  partially  because  the  trend  of  the  ties,  chap, 
nineteenth  century  was  toward  the  obligation  of  society  to  ^^^* 
her  unfortunates;  but,  although  certain  kinds  of  charitable 
relief  are  now  performed  exclusively  by  our  governments, 
certain  others  are  thought  to  be  better  dispensed  without 
the  help  of  officials. 

484.  State  Boards  of  Charities. — Over  one-third  of  the  Work  of  the 
states  have  created  state  boards,  to  have  general  oversight  ^*^^^  boards. 
of  state  charitable  institutions,   if  such  there  are.     They  Warner, 
may  also  do  some  visiting  among  the  counties,  offer  sug-  ^  ^P'  ^^"^• 
gestions,  and  make  reports.    The  work  is  likely  to  be  almost 
exclusively  educative,  although  the  boards  may,  of  course, 

have  some  powers  of  supervision,  or  possibly  control. 

The  state  institutions  which  are  most  common  are  those  Care  of  the 
for  the  blind  or  the  deaf  and  the  dumb.     State  insane  asy-  '"^°*' 


398 


The  American  Federal  State 


Warner, 
chap.  XI. 


Character- 
istics and 
defects. 

Warner, 
chap.  VI. 


Dependent 
children. 

Warner, 
chap.  IX. 


Hospitals 
and  dispen- 
saries. 


lums,  or  more  correctly  insane  hospitals,  are  maintained 
by  the  more  progressive  commonwealths  for  the  most  vio- 
lent cases,  the  milder  ones  being  all  but  universally  left  in 
the  charge  of  the  counties.  A  large  sum  is  expended  each 
year  for  the  care  of  insane  patients  and  the  attempted  cure 
of  acute  mental  disease. 

485.  The  Almshouse.  — The  bulk  of  the  burden  of  public 
charity  falls  upon  the  county  or,  in  New  England,  the  town, 
though  the  city  never  fails  to  have  some  share  of  the  ex- 
pense. The  counties  maintain  an  institution  generally 
known  as  the  almshouse,  but  occasionally  called  by  a  less 
offensive  name.  This  is  primarily  a  home  for  the  aged 
poor,  and  for  those  absolutely  incompetent  and  without 
friends  to  support  them.  The  poorest  almshouses  make  no 
provision  for  the  classification  of  their  inmates  or  for  the 
separation  of  the  classes;  the  aged,  the  young,  the  blind, 
the  sick,  the  feeble-minded,  the  insane,  and  the  lazy  being 
often  herded  together.  In  such  an  institution  the  practical 
management  is  no  better  than  the  theoretical  arrangement, 
or  lack  of  it;  the  person  in  charge  usually  being  ignorant, 
if  not  rough  or  brutal.  Fortunately,  almshouses  of  this  type 
are  much  rarer  than  formerly,  and  most  of  the  localities 
nowadays  provide  for  separate  homes  for  children  and  the 
insane,  or  at  least  separate  wards  for  the  insane  and  the  sick. 

486.  Other  Local  Charities.  —  Either  public  or  private 
enterprise  manages  to  find  a  means  of  erecting  children's 
homes,  for  the  purpose  of  keeping  orphaned  little  ones  out 
of  the  streets  and  away  from  evil  influences.  This  is  felt 
to  be  the  most  necessary  step  in  the  process  of  preventing 
crime,  and  that,  consequently,  it  should  be  undertaken  by 
the  state  for  its  own  safety,  if  not  for  the  sake  of  the 
children  themselves. 

Many  cities,  and  some  counties  and  towns,  maintain  hos- 
pitals, at  public  expense,  for  those  unable  to  buy  needed 
medical  care.  Some  of  the  larger  municipalities  also  have 
free  dispensaries,  at  which  medical  advice  and  drugs  may 
be  obtained  without  cost.     The  city  physician,  usually  in 


Town  and  County  Government  399 

connection  with  the  board  of  health,  is  paid  by  the  city 
for  the  care  of  the  sick  poor  in  their  homes. 

Provisions,  fuel,  and  other  necessaries  are  in  any  locali-  Outdoor 
ties  granted  by  the  overseers  of  the  poor  to  families  in  ''^'*^^* 
need;  but  we  are  coming  to  leave  this  form  of  charity  more  Warner, 
and  more  to  private  parties,  on  the  ground  that  they  can  *^  *^' 
more  easily  ascertain  the  real  need  of  these  things  and 
prevent  fraud.     Public   lodging-houses  and  employment 
bureaus,  when  properly  managed,  have  proved  themselves 
great  blessings  to  the  honest  workman  out  of  employment, 
and  to  the  community  in  ridding  itself  of  tramps. 

In  cities,  especially,  large  sums  of  money  are  annually  Public  aid  to 
appropriated  to  private  organizations  because  it  is  hoped  P"^**^  ^hari- 
they  will  use  it  to  better  advantage.     When  that  is  done, 
the  city  should  always  be  satisfied  that  the  money  is  properly  ^hap.  xvii. 

e^P^^ded-  Coler.^««. 

The  great  danger  of  all  charity  is  that  it  is  likely  to   Gov't. 

aggravate  the  evils  it  attempts  to  relieve,  through  lack  of  Dangers  of 

discrimination.     Like  most  of  the  other  activities  of  gov-  mdiscnmi- 

,  nate  chanty. 

ernment,  but  to  a  greater  extent  than  most,  it  requires 

earnest  yet  disinterested  officials,  who  shall  possess  some 

tact  and  much  sense. 

487.  Rural  Roads.  —  In  spite  of  the  great  development  Means  of 

of  railways  in  the  United  States,  and  of  electric  and  horse-  '""Proving 
,.  ,  ■    -,1  1  1  ,  ,    highways. 

car  lines  between  villages,  the  great  dependence  is,  and 

always  must  be,  upon  our  roads.  To  lay  out  roads  in  the 
right  places,  and  see  that  they  are  kept  in  as  good  condi- 
tion as  the  needs  of  the  people  demand,  is  usually  the  duty 
of  the  county  board,  though  often  of  a  town  highway  officer. 
The  erection  of  bridges  usually  belongs  to  the  same  authori- 
ties. The  state  does  little  more  than  make  general  rules 
regarding  the  duties  of  local  officials,  the  methods  to  be 
used  in  opening  and  closing  highways,  and  some  regula- 
tions, possibly,  regarding  width.  A  few  states  have,  indeed, 
encouraged  the  improvement  of  roads  by  appropriating  from 
the  state  treasury  a  maximum  amount,  to  be  distributed 
among  the  localities  in  proportion  to  the  amount  properly 


400  The  American  Federal  State 

expended  by  them  for  good  roads.  Agitation  by  wheelmen, 
to  whom  a  bad  road  is  practically  useless,  and  the  growing 
appreciation  of  the  fact  that  in  a  fairly  well  settled  section 
a  poor  road  is,  in  the  end,  more  costly  to  the  farmer  than  a 
good  one,  is  doing  much  toward  improving  country  highways. 

QUESTIONS  AND  REFERENCES 

The  State  and  the  LocaUties  (§§  466-470) 

a.  For  a  comparison  of  local  government  in  America  with  that  of 
France,  Germany,  and  England,  respectively,  see  Wilson,  The  State^ 
§§  440-471,  588-613,  952-985,  and  Goodnow,  Comparative  AdminiS' 
trative  Law,  266-294,  295-338,  234-265.  For  fuller  discussion  or 
relation  of  local  to  central  government  in  England,  consult  Maltbie, 
English  Local  Government  of  To-day. 

1.  What  part  did  the  theory  that  the  state  is  sovereign  play  in  male* 
ing  the  state  absolute  in  its  control  of  the  counties  and  townships  ? 
Would  there  be  any  advantage  in  giving  the  localities  a  sphere  of  du- 
ties of  their  own  in  which  they  would  be  as  uncontrolled  by  the  state 
as  the  nation  now  is,  in  other  words,  could  a  federal  system  be  estab- 
lished with  profit  within  a  state  ?  What  is  the  lesson  taught  by  the 
history  of  centralization  (§§  232-234)  about  the  probable  permanence 
of  such  a  small  federal  system  ? 

2.  Summarize  the  advantages  and  disadvantages  of  decentralized 
administration.  Which  is  more  desirable,  greater  uniformity  in  state 
law  or  more  local  government,  as  we  use  the  term  ?  How  can  we  best 
obtain  the  greatest  uniformity  with  the  largest  local  liberty  of  action  ? 

i.  Enumerate  the  list  of  subjects  for  which  special  laws  are  prohib- 
ited to  the  legislature  by  your  state  constitution.  Are  the  prohibitions 
effective  or  otherwise,  e^.  how  many  classes  of  counties  in  your  state 
and  how  many  classes  of  cities  ? 

ii.  How  are  county  seats  located  in  your  state  ?  How  are  county 
boundaries  determined  ?  What  officers  are  prescribed  for  the  county 
in  state  law  ?  What  ones,  if  any,  by  county  vote  ?  By  whom  is  the 
amount  of  salaries  determined  ? 

Town  Qovemment  (§§  471-475) 

I.  Why  is  the  town  system  not  adopted  everywhere  as  the  sections 
become  more  densely  populated  ?  Would  it  not  be  an  advantage  to 
have  town  government  in  all  of  the  states  ? 


Town  and  County  Government  401 

i.  What  is  the  political  division  smaller  than  your  county  called  ? 
How  many  are  there  in  the  county  ?  Are  they  public  corporations  ? 
What  officers  has  it  ?  Does  it  ever  hold  a  meeting  of  all  of  the 
voters  ?  If  so,  when,  and  for  what  purpose  ?  If  living  where  the 
town  is  important,  answer  all  of  the  questions  on  counties  and  county 
officials  which  would  apply  to  town  officials. 

County  Ooveminent  (§§  476-481) 

i.  How  many  counties  in  your  state  ?  Are  any  of  them  natural  sub- 
divisions ?  How  do  they  compare  in  area  and  in  population  ?  Do 
they  have  equal  representation  in  any  part  of  the  state  government,  or 
do  those  with  few  inhabitants  have  an  undue  proportion  of  representa- 
tives simply  because  they  are  counties  ? 

ii.  In  what  county  do  you  live  ?  Has  the  name  any  historic  mean- 
ing ?  What  is  its  area  ?  its  population  by  the  last  census  ?  What  is 
the  county  seat  ?  Is  it  centrally  located  ?  Is  it  the  largest  city  in  the 
county  ? 

(Consult  Political  Code  for  most  of  the  following.) 

iii.  How  many  members  on  your  county  board  ?  How,  when,  and 
for  what  term  are  they  chosen  ?  What  powers  have  they  ?  What 
are  they  called  ? 

iv.  What  is  the  term  of  the  county  officials  ?  Are  all  elected  at 
the  same  time  and  for  the  same  term  ?  Are  any  appointed  by  the 
state  government  ?  Give  the  highest  and  lowest  salaries  of  elected 
officials.     Do  the  offices  command  the  best  men  ? 

V.  Select  the  sheriff,  clerk,  or  other  officials  and  answer  the  fol- 
lowing :  Is  he  a  partisan  ?  How  long  has  he  filled  the  position  ? 
What  was  his  record  before  entering  office  ?  Has  he  given  satisfac- 
tory service  since  ? 

vi.  If  living  in  a  village,  give  population,  limits,  date  of  incorporation, 
officers,  salaries,  and  an  estimate  of  the  success  of  the  village  government. 

vii.  To  whom  do  you  go  to  get  a  warrant  to  have  some  one  ar- 
rested ?  Who  serves  it  ?  Of  whom  do  your  teachers  get  their  pay  ? 
Who  issues  teachers'  certificates  ?  Are  copies  of  deeds  and  mortgages 
kept  ?  With  whom  ?  Why  ?  Who  takes  charge  of  estates  of  persons 
dying  without  wills  ?  If  a  will  is  made,  how  is  it  admitted  to  probate? 
What  is  an  executor  ?  WTiat  is  meant  by  a  deed  ?  by  the  title  ?  How  is 
each  obtained  ?    What  is  a  mortgage  ?    How  is  a  mortgage  foreclosed  ? 

Functions  of  Local  Government  (§§  482-487) 

a.   On  public  charities  in  this  country  consult  Warner,  American 
Charities,  Part   II;   Whitten,  Public  Administration  in  Massachu- 
ao 


402  The  American  Federal  State 

setts,  chap.  Ill;   Fairlie,  Administration  in  New  York,  78-II4;   Re- 
port on  Organization  of  Charities  (1893),  43~^34' 

b.  On  charity  in  England,  see  J.  L.  Lowell,  Public  Relief  and 
Private  Charity,  9-48;  Maltbie,  English  Local  Government,  chap.  II. 
On  charity  in  France,  Organization  of  Charities,  14&-167. 

1.  Is  there  any  good  reason  why  the  county  officials  shall  be  par- 
tisans ?  What  proportion  of  their  duties  relate  to  political  policies  ? 
Is  administrative  ability  essential  ? 

2.  In  what  ways  may  charity  become  indiscriminate  ?  Why  is  pub- 
lic charity  more  likely  to  become  burdened  with  abuses  than  that  in 
private  hands  ?  Should  charity  become  more  of  a  government  afiair 
or  not  ?    Why  ? 

i.  Have  you  a  state  board  of  charities?  If  so,  what  powers  has  it  ? 
How  is  it  chosen  ?  What  has  it  done  to  improve  the  condition  of  the 
institutions  of  the  state  ? 

ii.  Where  is  your  almshouse  located  ?  Is  any  attempt  made  to 
separate  the  different  classes  of  inmates  ?  Is  there  a  farm  connected 
with  it  ?    Does  it  seem  to  be  well  managed  ? 

iii.  Learn  whether  any  or  all  of  the  classes  of  charity  enumerated 
in  §  486  are  dispensed  by  your  local  governments.    Are  any  others  ? 

iv.  Are  your  roads  laid  out  and  cared  for  by  the  town  or  the  county? 
What  was  the  expenditure  last  year  ?  Are  the  roads  of  your  section 
well  located  ?     How  are  they  improved  ?    Are  they  satisfactory  ? 

v.  Get  the  report  of  the  treasurer  or  auditor  for  last  year.  What 
is  the  assessed  value  of  property  in  the  county  ?  the  tax  rate  ?  the 
total  receipts  ?  the  expenditures  ?  Name  the  chief  items  of  expense 
in  their  order.     Which  ones  are  increasing  most  rapidly  ? 


CHAPTER  XXI 

THE  MUNICIPALITY 
General  References 

Bryce  (and  Low),  American  Commonwealth,  417-444.  Gives  both 
English  and  American  views  of  municipal  conditions  and  success. 

Coler,  Municipal  Government.  Experiences  in  New  York  City  at  the 
close  of  the  nineteenth  century. 

Conkling,  Municipal  Government  in  the  United  States.  Furnishes 
many  interesting  facts. 

Wilcox,  A  Study  of  City  Government.  An  excellent  handbook ;  sub- 
jects treated  under  problems  of  Organization,  Function,  and  Con- 
trol. 

Goodnow,  Municipal  Home  Rule.  Discusses  the  legal  rights  of  the 
municipality. 

Goodnow,  Municipal  Problems.  Treats  the  relation  of  city  to  the 
state  and  the  principles  of  organization.  The  best  single  volume 
on  ihe  city. 

Eaton,  The  Government  of  Municipalities.  Covers  the  subject  pretty 
fully ;  everything  considered  from  standpoint  of  "  civil  service 
reform." 

National  Municipal  League,  Conferences  for  Good  City  Government. 
Reports  to  1898  on  government  of  different  cities;  for  1899  sug- 
gests a  model  city  charter  and  discusses  it. 

Johns  Hopkins  University  Studies,  V  (on  different  cities). 

Parsons,  The  City  for  the  People,  17-254,  387-474.  Strongly  favors 
municipal  ownership. 

Maltbie,  Municipal  Functions.  A  study  of  the  development,  scope,  and 
tendency  of  municipal  socialism  (Municipal  Affairs  for  December, 
1898)  on  American  and  foreign  cities.     Invaluable  for  reference. 

Bemis  (ed.)  et  al..  Municipal  Monopolies  in  the  United  States.  Sepa- 
rate papers  upon  Water,  Gas,  Electricity,  and  other  functions; 
favoring  public  ownership. 

Periodical  indexes  under  City  or  Municipal  Government,  Reform, 
Functions,  Ownership,  Debt  and  Franchises,  Public  Ownership, 
Charter,  Mayor,  Council,  Street  Management,  Water  Works,  etc. 
403 


404 


The  Amencan  Federal  State 


Special  dif- 
ficulties in 
city  govern- 
ment. 

Low,  S.,  in 
Bryce, 

428-432. 

Goodnow, 
Mun.  Prob- 
lems, 283- 
3". 


488.  Some  Problems  of  the  City.  —  The  government  of 
municipalities  has  furnished  a  large  number  of  problems 
whose  solution  is  engaging  the  attention  of  prominent 
workers  and  thinkers.  So  far  in  our  history  our  city  gov- 
ernment has  been  deemed  quite  unsatisfactory,  but  as  the 
subject  has  not  received  the  consideration  it  deserved  until 
recent  years,  there  are  good  prospects  of  decided  improve- 
ment in  the  near  future.  A  hundred  years  ago  our  urban 
population  comprised  less  than  five  per  cent  of  our  whole 
number,  no  city  having  100,000  people.  In  1850  New 
York  had  but  500,000  souls,  and  nearly  ninety  per  cent  of 
the  inhabitants  of  the  United  States  resided  in  the  country. 
The  census  of  1900  shows  that  nearly  one-third  of  the  people 
of  the  United  States  live  in  cities  having  a  population  of  at 
least  8000  each,  and  that  thirty-eight  cities  have  passed  the 
100,000  mark.  This  rapid  growth  of  cities,  often  covering 
great  areas,  has  meant  that  many  new  duties  have  been  as- 
sumed, and  that  great  sums  of  money  have  been  expended. 
Meanwhile,  the  cities  have  been  passing  through  several 
experimental  stages  of  government,  and  have  received  large 
accessions  of  foreign  immigrants  who  have  brought  with 
them  little  or  no  experience  that  would  be  of  any  value  in 
their  new  homes.  The  democratic  principles  of  an  almost 
unrestricted  manhood  suffrage,  popular  election,  and  the 
"  spoils  system  "  have  not,  on  the  whole,  tended  to  improve 
a  government  whose  successful  operation  demands  careful 
and  efficient  administration. 


Areas. 


Elements  of 
population. 


The  area  of  one-third  of  the  cities  with  over  100,000  each  is  40 
square  miles  or  greater,  four  of  them  covering  over  100  square  miles 
apiece.  Smaller  cities,  especially  in  the  West,  are  territorially  very 
much  larger  in  proportion  to  the  population. 

The  number  of  aliens  in  our  large  cities  has  been  particularly  notice- 
able since  i860.  The  census  of  that  year  shows  that  New  York,  Boston, 
Brooklyn,  Chicago,  and  Cincinnati  had  between  forty  and  fifty  per  cent 
of  foreigners.  By  the  census  of  1890  New  York  City,  with  a  popula- 
tion of  1,515,301,  had  639,943  of  foreign  birth  and  579,275  Americans 
of  foreign  parentage,  while  in  San  Francisco  those  whose  parents  were 
born  abroad  numbered  seventy-eight  per  cent  of  all,  and  in  Milwaukee 


The  Municipality  405 

those  whose  parents  were  native  Americans  equalled  less  than  fourteen 
per  cent  of  all.  It  must  be  admitted  that  some  of  the  Americans  of 
foreign  parentage  took  more  interest  in  municipal  government  than 
descendants  of  revolutionary  patriots,  but  a  considerable  percentage 
were  not  truly  American.  What  was  true  of  New  York  is  in  some 
measure  true  of  almost  all  of  our  cities,  in  which  at  least  half  of  the 
voters  were  born  abroad,  because  among  immigrants  there  is  a  smaller 
proportion  of  women  and  children. 

489.  Development  of  Municipal  Government.  —  We  may  dis-  Colonial 

tinguish  three  periods  of  municipal  development :  (i)  The  P^"od. 

earliest  may  be  termed  the  colonial  period,  though  it  per-  Goodnow, 

sisted  till  perhaps  fifty  years  after  independence  was  de-  ^^J'  J^^^ ' 
clared.     The  cities  were  governed  under  charters  granted 

Fs-irlic   T  A 

first  by  the  King  or  royal  representative,  and  afterward  by  {„  ^««.      ' 
the  state  governors.     Full  powers  were  given  and  exercised  Program,  i- 
by  a  single  body,  composed  usually  of  councillors,' mayor,    ^^' 
and  treasurer,  all  of  whom  had  legislative,  judicial,  and 
executive  duties.     As  a  rule,  the  councillors  were  chosen 
by  a  select  set  of  voters,  the  mayor  and  treasurer  being 
appointed  by  the  state  governor. 

(2)  The  second  period  was  one  of  reorganization  upon  a  Period  before 
democratic  basis.     Charters  were  now  granted  by  the  legis-  ^'^''  ^"' 
latures  and  revoked  or  modified  at  will.     Separation  of  the  Fairiie,  ii- 
departments,  already  begun,  was  completed.    Popular  elec- 
tion was  substituted  for  appointment  in  the  selection  of 

most  administrative  officials,  and  the  council  was  gradually 
stripped  of  its  more  important  duties. 

(3)  The  third  period  marks  the  complete  supremacy  of  City  govem- 
the  state  legislature  in  city  affairs.     It  is  almost  needless  ^^*smce 


to  say  that  this  stage  still  exists.     The  council  has  been 

35 


still  further  reduced  in  strength,  its  legislative  rights  being       "^    ' 


largely  assumed  by  the  state,  in  spite  of  constitutional 
restrictions  upon  the  passing  of  local  and  special  laws. 
Administrative  power  is  being  concentrated  more  and  more 
in  the  hands  of  the  mayor,  with  the  hope  of  obtaining 
greater  efficiency  and  responsibility,  while  recently  a 
decided  effort  has  been  made  to  give  the  municipality, 
as  a  whole,  a  larger  sphere  of  action. 


4o6 


The  American  Federal  State 


A  subdivi- 
sion of  the 
state  and  a 
centre  of 
population. 

Goodnow, 
Mun.  Prob- 
lems, 2i-89. 


An  act  of  the 
state  legis- 
lature. 


490.  Twofold  Functions  of  the  City.  —  Like  the  county, 
the  city  is  a  public  corporation  created  by  act  of  the  state 
legislature,  but,  unlike  the  county,  it  is  more  than  a  con- 
venient subdivision  of  the  state  for  the  proper  administra- 
tion of  state  law.  It  is  primarily  a  thickly  populated  district 
endowed  with  definite  powers  for  the  satisfaction  of  its  own 
local  needs.  This  twofold  character  may  perhaps  be  best 
explained  by  illustrations,  (i)  There  are  a  great  many 
things,  like  the  laying  out  of  streets,  street  lighting  and 
grading,  protection  from  fire,  the  building  of  sewers,  regu- 
lation of  water  supply,  transportation,  and  a  multitude  of 
others  that  are  vastly  more  interesting  and  important  to 
the  people  of  the  city  than  to  the  people  of  the  state,  and 
which  they  should  be  left  to  control,  as  far  as  possible, 
in  their  own  way.  (2)  On  the  other  hand,  the  laws  for 
the  protection  of  life  and  property,  the  system  of  public 
education,  measures  for  the  preservation  of  health,  and 
the  care  of  the  poor  originate  with  the  state  govern- 
ment, because  it  is  essential  that  these  things  should  be 
fairly  uniform  throughout  the  state.  It  may  be  necessary 
for  the  cities  to  have  more  elaborate  machinery  to  carry 
out  these  state  laws  than  less  populated  districts,  but 
they  remain  matters  of  state  rather  than  municipal  con- 
cern. 

491.  The  Charter.  —  So  far  as  the  city  has  a  fundamental 
law,  it  is  the  charter.  This  document  is,  however,  merely 
an  act  of  the  legislature,  except  in  Missouri,  California, 
Washington,  and  Minnesota,  and  is  subject  to  repeal  and 
amendment  like  any  other  law.  No  incorporation  occurs 
ordinarily  unless  a  town  requests  a  city  form  of  govern- 
ment; but  the  city  is  not  able  to  determine  for  itself  the 
nature  of  its  government  nor  the  character  nor  extent  of  its 
functions,  as  the  legislature  has  complete  control  of  every- 
thing, usually  even  the  smallest  details.  Like  the  com- 
monwealth constitutions,  the  charters  are  quite  full,  so  that 
the  ordinance-making  power  of  the  council  is  sure  to  be 
limited. 


The  Municipality  407 

492.  Reform  in  Charter-making.  —  Before   1850  there  were  Charters 
several  instances  where  charters  were  framed  by  city  conventions,  but  niade  by 
until   1875  no  constitution  provided  for  city  cooperation  in  making  "  '^*' 
charters.     Missouri  in  that  year  took  the  first  step  toward  city  self-  Parsons,  City 
government,  California  followed  in    1879,.  Washington  in  1889,  and  for  People, 
Minnesota  in  1896.  ^  5-427- 

The  California  system  provides  that  when  a  city  wishes  to  frame  a    OberhoHzer, 
new  charter,  the  council  may  hold  an  election  in  order  to  choose  fifteen    Referendum, 
freeholders,  each  of  whom  shall  have  been  a  resident  of  the  city  at    3'*3-3o7- 
least  five  years.     This  body  shall  proceed  to  make,  subject  to  constitu-    The  Califor- 
tional  limitations,  a  charter  which  shall  be  submitted  to  the  voters  of   d'*  method, 
the  city.     If  approved  by  a  majority  of  those  voting,  it  shall  be  sent  to 
the  legislature  which  must  approve  it,  before  it  is  declared  in  force. 
The  Missouri  system  does  not  require  ratification  by  the  legislature,  but 
the  charter  is  subordinate  to  laws  which  affect  the  cities. 

It  is  scarcely  possible  that  such  a  practice  will  be  soon  widely 
adopted,  but  there  is  reason  to  hope  that  in  time  the  states  will 
permit  the  cities  to  decide  under  very  general  laws  what  form  of 
government  and  special  requirements  are  best  suited  to  their  own 
needs. 

493.  The  Council :    Organization.  —  The  council   is  the  Number  of 
legislative  municipal  organ.     In  about  one-fourth  of  our  chambers 
cities  it  is  bicameral,  the  upper  house  often  being  chosen  of  members, 
from  the  city  at  large  or  from  a  few  districts,  the  members  Qoo^now 
of  the  lower  house  representing  wards.     Where  there  is  Comp.  Ad- 
only  one  chamber,  it  is  ordinarily  made  up  of  one  repre-  »'»""'^'»''*" 
sentative  from  each  ward,  although  some  cities  have  pre-  217. 
ferred  election  by  general  ticket  or  by  districts.     The  first  conkiing 
method  insures  local  representation;  the  second  and  third  Mun.  Gov't, 
are  likely  to  secure  better  men.     Election  by  the  city  at  ^  ^^' 
large  has  the  disadvantage  of  giving  the  dominant  party  an  Wilcox,  city 

,  .....  ....  Gov't,  143- 

undue  majority  unless  there  is  some  provisions  for  minor-   ^53 

ity  or  proportional  representation,  of  which  we  have  no 

conspicuous  examples  as  yet. 

Most  of  our  cities  choose  the  members  of  the  council  for 

two  or  four  years,  though  the  New  England  states  show  a 

preference  for  one  year.    When  the  term  is  a  long  one,  the 

council  is  apt  to  be  a  continuous  body,  one-half  retiring  at 

a  time. 


408 


The  American  Federal  State 


Limited 
character  of 
powers. 

Goodnow, 
Admin.  Law, 
I,  213-215. 

Cf.  Good- 
now, Mun. 
Problems, 
215-246. 

Wilcox,  City 
Gov't,  168- 
179. 


Two  classes 
of  mayors. 

The  mayor 

without 

power. 

Conkling, 
Mun.  Gov't, 
chap.  II. 

Wilcox,  City 
Gov't,  181- 
191. 


The  mayor 
with  power. 


494.  Powers  of  the  Council.  —  The  powers  which  are  exer- 
cised by  the  council  are  those  delegated  by  the  legislature 
and  enumerated  in  the  charter.  They  are  thus  subject  to 
restriction  or  alteration  at  the  will  of  the  legislature. 
Being  enumerated,  they  apply  solely  to  the  subjects  men- 
tioned in  the  list  of  powers.  These  are  of  two  classes,  one 
dealing  with  the  kinds  of  ordinances,  or  local  laws,  that 
the  council  may  pass,  the  other  referring  to  finance.  Or- 
dinarily the  larger,  but  not  the  whole,  part  of  the  ordinance- 
making  power  is  vested  in  the  council,  covering  everything 
for  which  by-laws  are  necessary,  except  certain  police  and 
health  regulations,  which  are  proclaimed  by  the  boards  of 
the  respective  departments.  To  the  council  is  given  the 
right  to  determine  how  much  money  shall  be  raised  for 
city  expenses,  though  in  recent  charters  it  is  often  degraded 
to  a  mere  revisory  body.  It  arranges  for  the  borrowing  of 
money  for  permanent  improvements,  subject  usually  to  a 
vote  of  the  people  on  each  important  loan,  and  subject  also 
to  the  limit  of  indebtedness  prescribed  by  the  city  charter. 
The  granting  of  franchises  is  ordinarily  left  in  its  hands, 
and  it  has  the  power  to  make  contracts  as  well. 

495.  The  Mayor.  —  The  position  of  the  mayor  is  very 
different  in  different  cities.  He  is  always  chosen  by  popu- 
lar election,  usually  for  two  or  four  years.  In  most  of  the 
cities  that  have  not  had  their  governments  remodelled 
recently,  the  mayor  has  a  position  similar  to  that  of  the 
state  governor.  His  greatest  influence  comes  from  the 
power  to  veto  ordinances.  He  may  have  some  power  of 
appointment,  possibly  of  removal,  but  he  has  no  control 
whatever  over  the  other  executive  officials,  who  are  also 
elected  by  the  people;  and  he  may  not  be  able  to  do  any- 
thing with  the  executive  boards  or  appointed  heads,  who 
are  possibly  chosen  by  the  council  or  even  by  the  state 
legislature. 

The  mayor  who  has  been  fortunate  enough  to  be  given 
centralized  power  is  rather  to  be  compared  with  the  Presi- 
dent of  the  United  States,  for  not  only  has  he  the  veto,  but 


The  Municipality  409 

almost  sole  power  of  appointment  and  removal  of  the  whole   Low,  s.,  in 
administrative  service.     His  term  is  apt  to  be  short,  but  ^Tce,  434- 

.  439- 

his  pay  is  large.  The  right  to  submit  an  estimate  of  the 
amount  of  money  needed  to  run  the  government  —  an  esti- 
mate which  the  council  cannot  increase  —  may  be  given 
him  in  extreme  cases.  But  with  concentration  of  power 
comes  increased  responsibility,  as  he  may  ordinarily  be 
removed  by  a  two-thirds  or  three-fourths  majority  of  the 
council.  He  is,  in  truth,  the  government,  and  he  is  held 
strictly  accountable  for  his  own  acts  and  those  of  his 
subordinates. 

The  Brooklyn  charter  of  1882  was  the  first  to  introduce  this  "  cen-    Spread  of  the 
tralized "  system.     The  only  officials  chosen  by  the  people  were  the    Brooklyn 
mayor,  the  controller,  and  the  auditor.     All  other  officials  and  boards    syst'^™' 
were  appointed  by  the  mayor.     The  example  of  Brooklj'n  has  been 
followed  to  some  extent  by  most  of  the  large  cities  that  have  adopted 
new  governments  since  1890. 

496.  Other  Elected  Officials. — As  most  of  our  cities  are  Large  num- 
still  the  "non-centralized"  type  of  government  —  the  one 
first  described  in  the  previous  section  —  we  usually  find  cities, 
that  at  municipal  elections  the  list  of  persons  chosen  include 
a  clerk,  a  treasurer,  a  tax  collector,  an  assessor,  an  auditor, 
an  attorney,  besides  the  judges.  In  general,  the  duties  of 
these  officials  correspond  to  those  of  similar  offices  of  the 
county  government,  though  they  are  apt  to  be  a  little 
broader  in  scope. 

In  the  "centralized"  cities  the  auditor  or  controller  is  Auditor  in 

often  the  only  executive  official,  besides  the  mayor,  who  "central- 
ized   cities. 
is  elected.     He  is  given  more  power  than  the  auditor  in 

the  non-centralized  type,  forming,   with  the  mayor,   the 

commissioners  of  public  works,  public  safety,  and  health, 

a  board  of  estimate  that  has  the  sole  right  to  introduce 

financial  bills  which  the  council  can  reject,  or  amend  only 

by  reducing  the  amount  authorized.     The  appointment  of 

the  tax  collector,  attorney,  etc.,  in  such  a  government  is 

given  to  the  mayor,  their  terms  of  office  being  frequently 

longer  than  his. 


ber  in  "  non- 
centralized  " 


410 


The  American  Federal  State 


Recent  at- 
tempts to 
classify 
departments 
more  scien- 
tifically. 

Cf.  Wilcox. 
City  Gov't, 
193-214. 


497.  Administrative  Departments.  —  Besides  the  depart- 
ments, of  which  the  persons  just  considered  are  heads,  every 
city  has  many  others  for  the  administration  of  the  law. 
As  administration  is  so  much  more  important  than  legisla- 
tion in  cities,  the  success  of  the  government  depends,  to  a 
great  extent,  upon  the  organization  of  these  departments. 
Where  little  attempt  has  been  made  to  remodel  the  mu- 
nicipal system  according  to  scientific  principles,  they  are 
very  numerous  and  in  no  way  related  to  each  other;  but  in 
the  "centralized"  cities  some  of  the  departments  have 
been  abolished  outright  or  consolidated,  while  some  of 
those  remaining  have  been  made  into  bureaus  of  two  or 
three  grand  departments.  At  the  head  of  these  grand  de- 
partments stands  the  department  of  public  works,  which 
includes  several  bureaus,  each  of  which  by  itself  performs 
duties  of  magnitude.  Another  instance  is  the  department 
of  public  safety,  which  looks  after  police,  fire,  and  health, 
and  some  other  functions.  If,  as  is  the  case  in  most  of 
these  cities,  the  head  of  each  bureau  is  fully  responsible  to 
the  head  of  his  department,  while  the  chiefs  of  the  depart- 
ments are,  in  the  same  way,  responsible  to  the  mayor,  it  is 
possible  to  fix  the  blame  for  poor  service  and  reward  a 
faithful  official  as  he  deserves. 


Considerable  discussion  has  been  devoted  to  the  usefulness  of  indi- 
viduals or  boards  as  heads  of  departments.  Most  cities  retain  boards 
where  deliberation  is  essential,  or  have  a  board  to  determine  the  policy 
of  the  department  and  a  chief  to  execute  its  wishes. 


Boards  aided 
by  cbiefe. 

Conkling, 
Mun.  Gov't, 
64-83. 


498.  Police,  Fire,  and  School  Departments.  —  All  of  these 
departments  are  usually  under  boards,  aided  by  heads  called 
chiefs  or  a  superintendent.  In  about  ten  per  cent  of  our 
largest  cities  the  police  board  is  appointed  and  controlled 
by  the  state;  but  the  rule  is  for  the  council  or  mayor  to 
select  the  police  and  fire  boards,  but  for  the  people  to 
choose  the  board  of  education,  usually  by  wards,  though 
occasionally  by  a  general  ticket.  The  administrative  heads 
are  then  chosen  by  the  board. 


The  Municipality  41 1 

Appointments  upon  the  police,  fire,  and  school  forces  Reform  ofthe 

are  also  made  by  the  boards  in  most  of  the  cities,  and  it  !^'^''  service 
•'  .in  these  de- 

ls the  exception  to  demand  fitness  as  the  sole  requirement  panments. 

in  appointment  or  unfitness  as  the  only  one  for  removal. 

The  creation  of  better  systems  of  civil  service  is  one  of  the 

crying  needs  of  city  government. 

499.  The  Civil  Service.  —  So  long  as  administration  is  Why  civil 

almost  the  sole  duty  of  cities,  political  opinions  are  not  a  ^^'^"^.'^  ^^^ 
■'  '  '^  '■^  form  IS  m- 

necessary  qualification  of  employees  for  over  ninety-five  dispensable 

per  cent  of  the  positions.     Obviously,  skill  and  experience  ^°^  ^oo^  city 

government, 
should  be  desired  above  all  else,  and  to  obtain  these  we 

must  be  prepared  to  give  salaries  that  will  attract  ability, 
and  a  reasonably  permanent  tenure  to  retain  it.  Until 
recently  civil  service  reform  in  the  United  States  has  been 
confined  to  the  national  government,  so  that  appointment 
and  promotion  solely  on  merit  have  been  rare  in  our  cities, 
while  a  change  of  almost  the  whole  clerical  force  in  a  de- 
partment has  quickly  followed  the  selection  of  a  new  head. 
We  have  now  in  a  few  cities,  and  in  three  or  four  states, 
civil  service  boards  created  for  the  purpose  of  giving  com- 
petitive examinations  to  applicants  for  positions,  but 
progress  in  this  direction  seems  very  slow. 

500.  Municipal  Courts.  —  The    larger    cities   invariably  Organization 

have  courts  whose  jurisdiction  is  restricted  to  their  limits,   ^'^^  jurisdic- 
tion, 
and  which  form  but  a  part  of  the  judicial  system  of  the 

state.     Some  of  the  older  ones  may  still  hold  special  cor-  ^''?°'''  ^*^ 

■'  ^  Gov  t,  314- 

poration  courts,  which  were  created  long  ago  in  the  days  225. 
when  a  municipality  was  a  privileged  body;  but  these  have 
practically  disappeared.  The  courts  usually  have  exclusive 
original  jurisdiction  of  all  cases  arising  under  city  ordi- 
nances, with  appeal  most  of  the  time  to  a  higher  court. 
They  also  try  petit  criminal  and  civil  suits  involving  state 
law.  The  judges  are  elected  by  the  people  of  the  city  for 
terms  varying  from  one  to  fourteen  years. 

501.  Two  Sets  of  Functions  performed  by  Cities. — The  Administra- 
work  done  by  cities  may  be  classified  under  two  heads:  |'^^.^"'^ 

■'  ■'  business 

administrative  functions  and  business  functions.     It  may  functions. 


412 


The  American  Federal  State 


Preparing 
streets  for 
use. 

Conkling, 
Mun.  Gov't, 
111-137. 

Maltbie, 
Municipal 
Functions, 
114-126. 


Abuse  of 
street  privi- 
leges. 


not  always  be  possible  to  separate  those  of  one  set  from 
those  of  the  other,  because  many  functions  partake  of  the 
nature  of  both.  One  characteristic  that  both  classes  of 
functions  have  in  common  is  the  tendency  to  increase  in 
number  and  complexity.  Half  a  century  ago  most  of  the 
administrative  duties  of  the  present  city  were  performed, 
if  at  all,  by  the  individual  householders.  It  is  not  a  great 
many  years  since  the  inhabitants  of  most  cities  depended 
upon  outsiders  for  sprinkling  their  streets,  for  care  of  refuse, 
for  academic  education,  and  for  the  care  of  the  defective 
classes.  The  same  thing  is  true  of  the  business,  or,  as  some 
term  them,  the  socialistic  functions.  Where  the  city  un- 
dertakes to  supply  water,  gas,  or  electricity,  or  to  furnish 
transportation,  it  does  it  with  the  hope  of  giving  better 
service  rather  than  for  the  purpose  of  making  profit,  though 
an  addition  to  the  sources  of  the  city's  revenue  is  never 
unwelcome. 

502.  Care  and  Protection  of  the  Streets.  —  Streets  are  usu- 
ally laid  out  under  the  direction  of  the  council,  assisted  by 
the  superintendent  of  streets.  The  cost  is  defrayed  partly 
by  the  people  of  the  adjacent  territory  and  partly  by  the 
city.  If  the  owners  of  the  land  refuse  to  sell,  it  is  neces- 
sary to  resort  to  the  right  of  eminent  domain,  which  is  con- 
ferred by  the  state  legislature  for  this  purpose.  The  case 
is  tried  in  the  suitable  court,  and  if  the  contention  of  the 
city  is  sustained  the  value  is  usually  fixed  by  commis- 
sioners appointed  by  the  judge.  Once  cut  through,  the 
street  must  be  graded  and,  as  it  comes  more  into  use, 
paved.  The  expense  of  these  operations  and  subsequent 
care  is  borne  partly  or  wholly  by  the  adjacent  property, 
except  for  incidental  repairs. 

It  is  claimed,  too  often  with  just  cause,  that  the  contracts 
let  by  the  city  are  not  well  performed :  that  the  city  always 
pays  for  more  than  it  gets.  The  city  is  also  careless  in 
allowing  private  parties  and  corporations  to  tear  up  the 
streets  in  order  to  put  in  pipes  that  should  have  been  laid 
before  the  pavement  was  completed;  but  the  most  unfor- 


The  Municipality  413 

tunate  part  of  street  management  is  the  way  that  franchises 
to  railways,  water  companies,  and  others  have  been  given 
away,  although  they  conferred  rights  which  should  have 
brought  large  sums  into  the  city  treasury. 

503    Police  Regulations. — The  police  duties  of  a  city  Scope  of  the 
cover  a  field  embracing  such  apparently  unrelated  subjects  po'i^e  power, 
as  the  arrest  and  detention  of  criminals,  the  granting  of   Maitbie, 
licenses,  building  of  sewage  systems,  and  a  multitude  of  ^^^  ^_^ 
other  functions  for  the  protection  of  the  life,  property,  and 
health  of  the  inhabitants.     The  first  of  these  occupies  the 
police  force  proper,  and  its  importance  increases  in  geo- 
metrical ratio  with  the  growth  of  the  city.     Licenses  are 
usually  granted  by  the  police  board  upon  fulfilment  of  the 
legal  requirements,  but  their  enforcement  is  intrusted  to 
the  police  force. 

The  problem  of  sewage  disposal  is  usually  a  troublous  and  The  sewage 
expensive  one.     It  is  customary  to  have  trunk  sewers  with  ^^^  ^'"' 
suitably  located  outlets,  into  which  many  branch  sewers   ^^aitbie,  126- 
empty  at  different  points.     The  location  of  such  sewer  sys- 
tems calls  for  the  highest  engineering  skill,  great  foresight 
as  to  future  development,  and  considerable  executive  ability. 

Every  city  has  a  health  officer,  who  has  charge  of  all   Prevention 
cases  of  infectious  diseases  and  is  empowered  to  use  all  °  ^P'"^^°  °^ 
necessary  means  to  prevent  the  spread  of  the  disease.     In 

,  ,      .   .       ,  f     1   •  .  Wilcox,  City 

seaboard  cities  he  may  find  it  necessary  to  quarantine  ves-    Gov't,  28-32. 

sels  arriving  from  infected  ports.     So  much  more  stringent 

have  the  rules  for  the  treatment  of  the  whole  subject  become, 

that  epidemics  are  no  longer  to  be  dreaded  as  in  former 

times. 

To  prevent  the  sale  of  unhealthful  or  forbidden  articles  Food  inspec- 
of  food,  inspectors  are  appointed,  who  perform  a  valuable  *'°"' 
work  in  preventing  dealers  from  selling  tainted  or  diseased 
meats,  impure  milk,  etc. 

504.  Miscellaneous  Functions.  —  Among  other  duties  per-   Educative 

formed  by  most  or  all  cities  are  certain  ones  done  for  the   ^"^  '^"'^.^" 
"'  ative  activ- 

education  or  pleasure  of  the  public.     The  establishment  ities. 
of  free  high  schools,  technical  schools  for  manual  training, 


414 


The  American  Federal  State 


Maltbie,  98- 
113. 


Municipal 
ownership  of 
water  works. 

Parsons,  City 
for  People, 
203,  204. 

Maltbie,  125- 
127. 


Success  of 
municipal 
ownership. 


Increase  of 

electric 
plants. 

Maltbie,  159, 
160. 


free  libraries,  and  art  galleries  are  illustrations.  Breathing 
places,  in  the  form  of  squares  in  the  centres  of  dense  popu- 
lations, or  large  parks  in  the  suburbs,  are  now  thought 
indispensable  for  a  city  of  prominence.  A  very  few  furnish 
museums  or  public  baths. 

505.  Water  Supply.  —  Among  the  business  functions  un- 
dertaken by  American  municipalities,  that  connected  with 
the  city's  supply  of  water  is  the  most  universal.  Less  than 
twenty  per  cent  of  large  cities  are  now  dependent  upon 
private  companies,  some  of  these  having  the  right  to  pur- 
chase the  whole  property  at  the  expiration  of  the  present 
contract.  Public  ownership  has,  almost  without  excep- 
tion, been  more  satisfactory  than  corporation  service,  and 
represents  a  saving  to  the  cities  and  the  inhabitants. 

One  reason  for  this  success  is,  in  all  probability,  the 
insignificant  expense  of  operation.  The  first  cost,  how- 
ever, is  great,  as  the  water  is  usually  brought  from  a  dis- 
tance, enormous  storage  reservoirs  are  required,  and  an 
extensive  network  of  street  pipes  must  be  laid.  Bonds  are 
issued  for  the  payment  of  the  amount,  the  interest  charges 
and  running  expenses  being  more  than  met  by  the  income 
from  water  used  by  individuals  and  business  companies. 

506.  Gas  and  Electric  Lighting.  —  Except  in  small  places, 
very  little  has  been  invested  by  the  municipality  for  gas  or 
electric  plants,  the  latter  being  much  more  common  than 
the  former.  The  greater  cost  of  operation,  the  lesser  need 
of  a  pure  supply,  and  the  state  constitutional  limitations 
upon  the  amount  a  city  may  put  into  public  works,  all  have 
a  deterring  effect.  Many  of  the  cities  that  have  electric 
light  works  furnish  both  the  inhabitants  and  the  streets  with 
light,  but  most  manufacture  exclusively  for  the  city's  use. 
Though  they  have  been  tried  but  a  short  time,  municipal 
ownership  seems  to  have  been  a  success. 


But  four  cities  with  a  population  of  over  25,000  each  had  public 
gas  works  in  1900,  and  only  a  few  small  ones ;  but  of  the  cities  with 
5000  inhabitants  nearly  100  had  electric  plants  and  300  others  fur- 
nished their  own  electric  lights. 


The  Municipality  415 

507.  Miscellaneous    Business    Enterprises. — Some   cities  Ownership  of 
have  for  years  owned  docks,  wharves,  and  other  harbor  and  river    docks  and 
facilities.    New  York  is  constantly  expending  vast  sunas  to  improve    W"*>^C5, 
her  water  front,  to  which  she  has  held  the  title  for  nearly  two  centu- 
ries.    Her  docks  not  only  pay  a  good  interest  on  the  money  expended, 

but  have  been  of  incalculable  value  in  increasing  the  commerce  of  the 
port. 

A  few  municipalities  have  built  railroads  outside  of  their  own  bor-  of  railroads, 
ders,  but  lease  them  to  private  corporations.  Strange  as  it  may  seem, 
none  except  Boston  and  New  York  have  yet  constructed  street  rail- 
ways or  subways,  though  the  advantages  of  municipal  ownership  with 
proper  business  management  are  pronounced,  both  because  in  our 
cities  transportation  to  the  suburbs  is  indispensable,  and  because  the 
streets  must  be  kept  as  far  as  possible  free  from  the  control  of  private 
parties. 

A  few  cities  have  municipal  lodging-houses  for  unfortunate  work-    of  lodging- 
men,  and  a  small  number  have  tried  experiments  with  farms  upon    houses, 
which  to  give  employment  to  those  out  of  work.     When  properly 
managed,  these  serve  the  double  purpose  of  benefiting  worthy  per- 
sons and  keeping  the  city  free  from  tramps  and  loafers. 

508.  The  Granting  of  Franchises.  —  As  public  ownership  Serious  de- 
has  made  so  little  progress  in  this  country,  the  granting  to  fcctsoniy 
corporations  of  franchises  giving  the  right  to  supply  water,  remedied, 
gas,  electricity,  transportation,  or  other  necessaries  becomes 

so  much  the  more  important.  Franchises  are  usually  granted 
either  by  the  city  council  or  the  state  legislature.  If  by 
the  former,  the  conditions  under  which  a  franchise  is  pos- 
sible are  described  in  the  charter,  and  may  be  enlarged  by 
a  separate  state  law.  It  has  been  customary  to  give  fran- 
chises for  long  periods  without  requiring  anything  in  return; 
then,  as  population  has  increased,  the  privileges  conferred 
by  the  franchise  have  become  of  enormous  value.  So  often 
has  this  happened  that  cities  are  now  endeavoring  to  pro- 
tect themselves  by  restricting  the  time  for  which  franchises 
are  granted  to  fifteen  or  twenty  years,  requiring  sale  of 
franchises  to  the  highest  responsible  bidder,  and  prescrib- 
ing a  minimum  per  cent  of  the  gross  receipts  obtained  from 
the  business  permitted,  which  shall  be  paid  into  the  city 
treasury.     Where  these  limitations  have  not  existed,  there 


4i6 


The  American  Federal  State 


Importance 
of  municipal 
finance. 

Wilcox,   City 
Gov't,  53-61. 


General 
property  tax 
and  other 
forms  of  in- 
come. 


has  often  been  more  or  less  corruption  among  the  council- 
men  who  have  favored  giving  the  franchise  for  nothing. 
On  the  whole,  it  must  be  said  that  our  municipalities  have 
not  conducted  this  part  of  their  business  with  economy, 
and  that  the  unfortunate  reputation  for  municipal  mis- 
government  that  we  have  abroad  is  justified  by  the 
facts. 

509.  Municipal  Finance ;  Sources  of  Revenue.  —  Finan- 
cial questions  are  relatively  much  more  important  in  cities 
than  in  the  states  or  the  nation.  A  larger  proportion  of  its 
duties  involves  the  payment  of  money  than  in  either  of  the 
others,  while  \\s,  per  capita  expenditures  are  six  times  those 
of  the  states,  and  nearly  double  those  of  the  nation. 

The  chief  source  of  revenue  is  the  general  property  tax 
(§§  587-590)  levied  upon  all  real  estate  and,  presumably, 
all  forms  of  personal  property.  This  furnishes  about  one- 
half  of  the  total  income.  The  rest  is  made  up  chiefly  of 
licenses  issued  to  liquor  saloons  and  various  other  kinds  of 
business,  fees  paid  for  work  done  on  papers,  issued  by  the 
city,  fines  paid  by  persons  violating  laws  or  ordinances, 
amounts  due  from  corporations  for  franchises,  and  water, 
gas,  or  electric  charges  for  whatever  may  be  supplied  by 
the  city's  plant.  Large  sums  are  also  raised  by  special 
assessment  upon  property  owners  for  improvements  made 
in  the  immediate  neighborhood. 


The  city  has  no  inherent  right  of  taxation,  that  exercised  being 
derived  from  the  state  constitution  or  legislature.  In  former  years  the 
power  to  levy  taxes  was  frequently  given  only  from  year  to  year;  but 
almost  everywhere  it  is  now  conferred  by  general  law. 


Expendi- 
tures for 
schools, 
streets, 
police,  etc. 


510.  Items  of  Expense.  —  More  is  spent  for  the  public 
schools  than  for  anything  else,  averaging  about  one-sixth 
of  the  whole  expenditure.  The  amounts  assigned  the  street, 
police,  fire,  and  lighting  departments  are  all  large.  The 
pay  of  regular  officials  and  their  assistants  is  usually  but 
little  smaller  than  those  just  mentioned.  As  the  city  always 
owes  a  debt,  and  usually  a  large  one,  the  interest  account 


The  Municipality  41 7 

always  has  to  be  considered  among  the  principal  items. 
In  cases  of  municipal  ownership  the  expenses  of  operation 
must  be  included,  while  the  wiser  cities  lay  aside  a  sinking 
fund  to  replace  the  machinery  and  buildings  as  repairs  are 
needed. 

511.  Municipal  Debts. — We  think  of  the  national  debt  indebtedness 
as  being  very  heavy,  but  it  is  much  smaller  in  proportion   ^^^  mvest- 
to  the  wealth  of  the  country  than  the  city  debts  in  propor- 
tion to  the  value  of  their  property.     However,  a  large  part   r^  '^^.^ 
of  the  municipal  indebtedness  is  in  the  form  of  invest-  168-173. 
ment,  principally  for  water  works;  while  a  still  larger  part 

was  spent  for  public  buildings,  like  city  halls,  schoolhouses, 
jails,  and  lire  engine  houses.  Although  a  great  deal  of  the 
money  borrowed,  as  well  as  that  raised  by  taxes,  has  been 
wasted,  the  value  of  the  city's  property  in  most  cases  is 
greater  than  the  whole  debt,  so  that  the  debt  may  represent 
a  saving  to  the  city  of  rentals  equal  to  the  amount  of  interest. 

Almost  all  states  prohibit  the  increase  of  city  debts  beyond  ten  or    Constilu- 

in  some  cases  five  per  cent  of  the  assessed  value  of  the  property  in  the    tional  limita- 

city.     As  stated  above,  water-works  bonds  are  not  counted.     Where  a    *'°"^  ^"^  "^' 
.       ,    .  ,    ,  ,  ■  .     ,  1  ,     .  •      debtedness. 

city  desires  to   undertake  any  municipal  enterprise,  such  as  electric 

lighting,  erection  of  docks,  or  construction  of  a  street  railway  system,    Wilcox,   City 

such  a  limitation  is  an  almost  insuperable  barrier,  and  one  which,  if     Govt,  89-91. 

municipal  home  rule  is  desirable,  should  be  so  altered  as  to  allow  the 

people  to  invest  in  what  they  see  fit. 

512.  Reform   through   Restrictions   of  the   Suffrage.  —  inadvisabii- 
Among  the  methods  suggested  for  improvement  of  the  city  ><yofprop- 
finances,  and  indirectly  for  the  reform  of  the  city  govern-  cations, 
ment,  is  one  that  suggests  a  sweeping  change  in  the  right  Qgojno^y 
of  suffrage  in  all  matters  where  money  is  directly  involved.  Mun.  Prob- 
It  is  proposed  to  have  at  least  all  purely  financial  officials  '""^'  ^5- 
elected  by  taxpayers  or  persons  paying  a  fairly  large  rental, 

and  to  keep  the  finances  in  the  hands  of  the  representatives 
of  these  persons.  However  reasonable  such  a  proposition 
may  seem,  the  practical  difficulties  appear  insurmountable. 
Without  a  complete  reorganization  of  the  city  government 
upon  entirely  new  lines,  it  would  not  be  possible  to  sepa- 


4i8 


The  American  Federal  State 


Need  of  per- 
manently 
organized  re- 
form move- 
ments. 


Need  of 
separating 
state  and 
municipal 
elections. 


rate  financial  questions  from  others,  if,  indeed,  it  could  be 
done  at  all.  To  introduce  a  tax-paying  or  rental  qualifica- 
tion for  city  voters,  while  national  and  state  elections  are 
open  to  all  citizens,  is  scarcely  to  be  thought  of  at  present. 
It  is  possible  that  the  referendum,  which  is  now  used  in 
certain  cities  to  obtain  the  consent  of  the  voters  before 
money  is  borrowed,  contracts  are  made,  or  franchises  are 
granted,  may  open  the  way  to  a  suffrage  for  persons  with 
money  interests  only;  but  immediate  reform  through 
restriction  of  the  suffrage  seems  out  of  the  question. 

513.  Municipal  Reform  through  Popular  Interest.  —  The 
first  step  toward  reform  is  really  much  simpler.  It  con- 
sists in  arousing  and  organizing  the  best  elements  of  the 
cities  in  order  to  insure  the  election  of  capable  and  honest 
men,  and  to  keep  in  close  touch  with  the  work  of  the  city. 
The  municipality  has  very  little  to  do  with  political  poli- 
cies, and  nothing  whatever  with  those  policies  that  sepa- 
rate the  nation  into  two  great  political  parties.  It  is  taken 
up  with  an  immense  amount  of  administrative  detail,  the 
proper  performance  of  which  constitutes  the  chief  feature  of 
good  municipal  government,  but  which  is  almost  wholly 
lacking  in  general  interest.  An  extra  effort  is  therefore 
required  to  keep  posted  on  how  the  city  departments  are 
doing  the  work,  —  but  an  effort  which  European  experience 
shows  is  worth  much  more  than  it  costs. 

514.  City  and  State  Elections.  —  As  the  city  has  so  little 
interest  in  national  and  state  issues,  election  of  city  officials 
upon  party  lines  is  an  almost  unmixed  evil.  But  as  the 
party  organizations  are  practically  the  only  ones,  besides 
the  goverment  itself,  that  exist  within  the  city  for  politi- 
cal purposes,  it  has  been  found  impossible  to  have  a  non- 
partisan municipal  election  at  the  same  time  that  state 
officials  and  congressmen  are  chosen.  To  remedy  this 
defect  separate  municipal  elections  are  being  held,  which 
render  independent  action  easier,  though  they  cannot  keep 
the  powerful  party  machinery  from  constituting  the  most 
important  factor  in  the  elections.     But  non-partisan  move- 


The  Municipality  419 

ments  have  been  so  strong,  both  East  and  West,  that  party 
nominations  in  separate  elections  have  lost  much  of  their 
offensive  character.  Whether  results  are  to  be  permanent 
depends  upon  the  earnestness  and  effective  organization  of 
the  citizens. 

515.  Municipal  Home  Rule.  —  The  reform  in  the  organiza-  Nature  of  the 
tion  of  the  city  government  and  in  the  relation  of  the  city     ^'^^I"* 
to  the  state  is  the  most  fundamental  of  all.     The  author 
believes  the  second  should  precede  the  first.     There  must  Ro^e,  L.  s., 

,-..  ,,  /-ti,  ••ii-  i"  Mun.  Pro- 

be  a  clearer  definition  of  the  exact  field  of  municipal  duties,  gram,  157- 
We  need  a  better  separation  of  the  duties  that  affect  the  173- 
city  almost  exclusively  from  those  which  the  city  govern- 
ment performs,  because  it  is  a  part  of  the  government  of 
the  state;  more  liberty  for  the  city  in  the  first  sphere  of 
action,  i.e.  municipal  home  rule,  and  better  control  by 
state  authorities  of  the  administration  of  state  law  within 
the  city.  The  ultimate  form  of  the  governmental  organi- 
zation is  as  yet  too  deeply  imbedded  in  the  future;  yet  it 
seems  safe  to  predict  it  will  include  both  enlarged  powers 
for  the  city  council  and  a  considerable  amount  of  executive 
centralization. 


QUESTIONS  AND  REFERENCES 
Gteneral  (§§  488-492) 

a.  In  Municipal  Problems,  Goodnow  treats  the  relation  of  the 
American  city  to  the  state  (22-89),  the  English  system  of  municipal 
control  (111-144),  and  the  administrative  control  on  the  continent 
(90-110).     See  also  Wilcox,  City  Government,  72-114. 

b.  The  general  character  of  municipal  government  in  England  is 
given  by  Shaw,  Municipal  Government  in  Great  Britain,  30-37;  in 
France,  in  his  Municipal  Government  in  Continental  Europe,  165- 
185  ;  of  German  cities,  ibid.,  306-322. 

1.  Compare  the  position  of  the  American  city  with  that  of  the 
European.  In  what  respects  has  it  more  liberty  of  action  ?  In  what 
less  ? 

2.  Is  it  true  that  a  city  is  nothing  but  a  business  corporation,  or  is 
it  more  of  a  public  corporation  existing  for  purpose  of  government  ? 


420  The  American  Federal  State 

3.  What  are  the  objections  to  having  charters  adopted  by  the  cities 
without  ratification  by  the  legislature  ?  Why  ought  both  the  city  and 
the  legislature  to  have  something  to  do  with  charter-making  ? 

i.  What  was  the  population  of  your  city  at  the  last  census  ?  What 
the  per  cent  of  growth  during  the  previous  decade  ?  What  per  cent 
were  foreign  born  ?  Native  born,  of  foreign  parentage  ?  From  what 
countries  have  most  of  these  come  ?     What  is  the  area  of  your  city  ? 

ii.  What  date  does  your  present  charter  bear  ?  How  was  it  ob- 
tained ?  Did  any  prominent  citizens  have  anything  to  do  with  it  ? 
Does  it  give  the  legislature  any  right  to  appoint  a  police  board  or 
other  officials  or  to  remove  any  ?  May  the  legislature  alter  it  at  will  ? 
May  the  legislature  grant  franchises  or  directly  control  expenditures 
under  it  ? 

Oovernment  (§§  493-500) 

a.  For  purposes  of  comparison  the  following  frames  of  government 
may  be  considered:  in  Conferences  for  Good  City  Government  (1894- 
1895),  on  "  Minneapolis,"  93-104  ;  "Milwaukee,"  1 19-124;  "New  Or- 
leans," 407-417;  ibid.  (1896),  on  "Pittsburg,"  146-161;  A.  Shaw,  on 
"St.  Louis,"  in  Century,  LII  (1896),  253  et  seq.,  and  on  "San  Fran- 
cisco," R.  of  R.,  XIX  (1899),  569-575;  Bugbee,  on  "Boston,"  in 
J.  H.  U.  S.,  V,  1 16-126;   S.  Low,  on  "Brooklyn,"  in  Bryce,  434-439. 

b.  Compare  the  American  mayor  with  the  heads  of  European  cities 
as  given  by  Shaw,  Municipal  Government  in  Great  Britain,  58-63; 
Shaw,  Municipal  Government  in  Continental  Europe,  on  "French 
Mayor,"  172-180;  on  "German  Burgomaster,"  313-315,  317-320. 

1.  Why  is  concentration  of  power  in  the  hands  of  the  mayor  be- 
lieved to  give  better  government  ?  Is  there  any  present  instance  of 
real  council  government  in  the  United  States  ?  in  England  ?  on  the 
continent  ?    If  so,  is  it  successful  ? 

2.  Summarize  carefully  the  advantages  of  election  by  the  city  at 
large.  To  what  kinds  of  bodies  may  it  be  applied  ?  Is  it  advisable 
to  choose  part  of  a  council  on  a  general  ticket  and  part  by  wards  ? 

i.  How  many  members  in  your  council  ?  When  and  for  what  term 
are  they  elected  ?  By  what  method,  —  general  ticket,  or  ward  ?  Are 
its  powers  enumerated  ?  What  are  the  principal  ones  exercised  ? 
What  is  the  reputation  of  the  council  for  ability  and  integrity  ? 

ii.  Is  power  centralized  in  the  hands  of  the  mayor  ?  What  is  his 
term  ?  his  salary  ?  Whom  does  he  appoint  ?  May  he  be  removed  ? 
If  so,  how  ?  Have  your  mayors  been  among  the  best  men  of  the  city  ? 
What  official  positions  did  the  present  mayor  occupy  before  election  ? 


The  Municipality  421 

iii.  What  officials  or  boards  are  elected  by  the  voters  ?  Do  you 
have  the  board  or  individual  system  for  departments  ?  How  is  the 
responsibility  enforced?  How  are  teachers  appointed?  removed? 
Have  you  any  civil  service  rule  ?  To  what  extent  is  it  the  custom  to 
change  the  appointed  forces  with  each  administration  ? 


Functions  and  Finance  (§§  501-51 1) 

a.  Maltbie,  Municipal  Functions,  summarizes  the  municipal  efforts 
to  furnish  gas  and  electricity,  155-162.  For  fuller  treatment,  see  Shaw, 
Great  Britain,  199-203;  Continental  Europe,  on  "  Paris,"  45-54,  and 
on  "  German  Cities,"  346-350.  American  experience  is  given  in  Bemis, 
Municipal  Monopolies,  chaps.  II,  III,  VIII. 

1.  To  whom  do  the  streets  belong  ?  Has  any  one  a  right  to  grant 
perpetual  franchises  upon  them  ?  In  what  kinds  of  cities  is  it  most 
necessary  that  the  life  of  franchises  be  short  ?  Do  most  American 
cities  belong  to  this  class  ? 

2.  Is  not  public  ownership  naturally  desirable  ?  Why  has  Europe 
gone  farther  than  we  in  municipal  enterprises  ?  What  characteristics 
of  our  city  government  hinder  a  great  extension  of  municipal  func- 
tions ?     How  can  these  last  be  remedied  ? 

3.  How  do  American  compare  with  European  cities  in  cost  of  gov- 
ernment ?  sources  of  revenue  ?  amount  of  debt  ?  and  efficiency  of  ser- 
vice? 

i.  Who  has  the  power  to  lay  out  your  streets  ?  What  percentage 
of  the  cutting  through,  of  grading,  of  care,  is  paid  by  the  abutting 
property  ?  Do  the  car  companies  of  your  city  pay  for  paving  part  of 
the  streets  on  which  they  run  ?     What  part  ? 

ii.  How  does  your  water  supply  compare  in  quality  and  price  with 
that  of  other  cities  of  the  same  size  ?  Does  the  city  own  the  water 
plant  ?  If  so,  when  was  it  bought  or  completed  ?  What  did  it  cost  ? 
What  is  the  sum  total  of  the  interest  or  investment,  payment  for  sala- 
ries, cost  of  replacing  worn  out  materials,  and  other  running  ex- 
penses? Does  it  equal  or  exceed  the  income  from  water  rates? 
What  was  spent  last  year  for  new  lines  of  pipes  and  other  forms  of 
investment  ? 

iii.  By  what  authority  are  franchises  granted  ?  Is  there  a  legal 
maximum  time  limit  on  them  ?  Is  there  a  minimum  per  cent  for 
railways  ?  What  has  been  the  experience  in  the  past  regarding  the 
sale  of  franchises  ? 

iv.  What  is  the  assessed  valuation  of  city  property  ?  the  rate  ?  the 
total  tax  levy  ?  the  whole  amount  of  revenue  from  all  sources  ?    Give 


422  The  American  Federal  State 

the  sums  spent  for  schools,  lighting,  police,  fire  department,  interest, 
etc.  What  is  the  debt  of  the  city  ?  What  per  cent  of  interest  does 
most  of  it  bear  ?  What  is  the  value  of  all  city  property,  and  of  what 
does  it  consist  ?     (Finance  Reports.) 


Municipal  Reform  (§§  512-515) 

1.  In  what  ways  may  universal  suffrage  be  said  to  be  responsible 
for  the  evils  of  city  government  ?  What  are  the  principal  objections 
to  a  property  or  rental  qualification  for  voters  ? 

2.  Show  why  the  influence  of  political  parties  upon  management  of 
city  affairs  has  not  been  good.  Is  independence  of  the  parties  possi- 
ble ?  Why  are  cities  rather  than  counties  and  states  subject  to  "ring" 
rule? 

3.  In  what  does  municipal  home  rule  consist  ?  Give  a  few  facts 
which  show  that  we  do  not  have  home  rule  now.  How  can  it  be 
obtained  ? 


PART    III 
POLICIES   AND    PROBLEMS 

CHAPTER  XXII 

SUFFRAGE  AND  ELECTIONS 
General  References 

Qeveland,  Growth  of  Democracy,  128-156,  285-306,  394-411.  His- 
torical and  critical. 

Colby,  J.  F.,  in  Lalor,  under  "  Suffrage." 

Haynes,  "Qualifications  for  Suffrage"  (/*.  S.  ^.),  XIII,  495-512. 

State  Constitutions,  article  on  "  Suffrage  and  Elections." 

Political  Codes,  under  Elections. 

Commons,  Proportional  Representation.    The  best  book  on  the  subject. 

Parsons,  The  City  for  the  People  255-386,  474-504.  Favors  initiative 
and  referendum. 

Cree,  Direct  Legislation. 

Oberholtzer,  The  Referendum  in  America  (the  second  book  of  that 
name).     A  judicious  and  scholarly  book. 

Periodical  literature,  indexes  under  Suffrage,  Franchise,  Elections, 
Ballot  Reform,  Australian  Ballot,  Corrupt  Practices,  Proportional 
Representation,  Initiative,  Referendum,  Direct  Legislation,  etc. 
See  also  United  States. 

516.  Historical  Changes  in  the  Suffrage.  —  No  other  sub-  Coiby.  j.  P.. 

ject  of  state  activity  has  so  influenced  the  history  of  our  '"  Lalor.  ill. 

country  as  the  suffrage.     Some  of  the  changes  have  been  Thorpe.  F. 

mentioned  in  Part  I,  but  we  may  distinguish  certain  steps  ^^^'"xcTv 

in  the  evolution  of  the  manhood  suffrage  of  the  present  day.  (1897).  207- 

(1)  During  the  seventeenth  century  there  existed  a  very  ''^s- 
4*3 


424  The  American  Federal  State 

Cf. Appendix  decided  lack  of  uniformity  in  the  franchise  requirements 
F,  Table  I.  ^j  ^j^g  different  colonies.  In  some  parts  of  the  country 
The  seven-  every  white  male  adult  had  the  right  to  vote,  but  the  right 
tury  *  '  ^^^^  little  used.  In  other  parts  property  was  the  basis  of 
the  suffrage,  and  in  the  North  religious  qualifications  were 
the  only  important  ones. 
The  eigh-  (2)  Before  the  eighteenth  century  most  of  these  differ- 

teent  cen-  g^ces  had  disappeared,  and  in  all  of  the  colonies  the  man 
with  land  of  a  certain  value  or  extent  was  the  only  voter. 
The  example  of  England  and  the  pressure  brought  to  bear 
by  the  English  government  account  for  the  new  condition 
of  affairs. 
From  177s  to  (3)  The  half  century  subsequent  to  the  Revolutionary  War 
^  ^^'  witnessed  the  breaking  down  of  these  barriers  of  property, 

and  the  substitution  of  citizen  suffrage  in  the  newer  states 
and  of  taxpayers'  suffrage  in  the  older. 
From  182510       (4)  Extensions  of  the  elective  franchise  occurred  with 
1870-  even  greater  rapidity  for  the  next  forty  years.     Residence 

was  really  the  only  thing  demanded  in  a  large  part  of  the 
West,  and  some  of  the  less  conservative  sections  admitted 
aliens  who  expected  to  become  naturalized  on  an  equal 
footing  with  citizens.  At  the  close  of  this  period  the 
nation,  as  a  whole,  by  the  fifteenth  amendment  (1870), 
made  it  obligatory  for  all  of  the  states  to  grant  negroes  the 
right  to  vote  on  the  same  terms  as  the  whites. 
Since  1870.  (5)  Since  1870  great  progress  has  been  made  in  placing 

suffrage  upon  a  safer  basis.  Citizenship  has  become  a 
more  universal  requirement,  with  a  tendency  to  demand 
that  no  person  shall  be  allowed  to  vote  if  naturalized  within 
a  certain  time  before  election.  The  list  of  persons  dis- 
qualified because  intellectually  or  otherwise  incompetent 
grows  longer  year  by  year,  an  especial  effort  being  made 
in  the  South  to  exclude  the  least  fitted  blacks  without  vio- 
lating the  national  Constitution.  At  the  same  time  dis- 
criminations regarding  sex  are  less  pronounced,  the 
standards  for  women,  when  they  are  allowed  to  vote, 
being  the  same  as  those  for  men. 


Suffrage  and  Elections 


425 


517.  Condition  of  the  Suffrage  at  Present ;  Citizenship  and 
Residence.  —  It  must  be  continually  borne  in  mind  that  the 
elective  franchise  is  not  a  right  of  citizenship,  but  a  politi- 
cal privilege  conferred  upon  individuals  by  the  states, 
within  limitations  that  may  be  prescribed  by  the  nation. 
Just  as  the  states  allow  aliens  to  hold  and  dispose  of  prop- 
erty, to  sue  and  to  be  sued,  to  act  as  jurors,  and  do  many 
other  things  that  really  belong  only  to  citizens,  so  they  have 
in  many  cases  permitted  foreigners  to  help  in  the  selection 
of  public  servants.  As  the  character  of  the  immigrants  to 
this  country  has  changed  during  the  last  fifteen  years,  the 
dangers  arising  from  this  course  have  been  more  evident 
and  have  aroused  the  people  to  exclude  aliens  from  voting, 
so  that  now  in  but  twelve  states  can  persons  who  have 
declared  their  intention  to  become  citizens  vote  on  any 
question. 

Every  state  makes  a  certain  period  of  residence  a  pre- 
requisite to  voting.  This  is  usually  one  year  within  the 
state,  but  may  be  as  high  as  two  years  or  as  low  as  six 
months.  Maine,  in  fact,  requires  but  three  months,  but 
demands  the  same  period  within  the  precinct,  or  smallest 
voting  district.  Most  of  the  other  states  have  residence 
qualifications  for  counties,  towns,  and  precincts,  in  order 
that  voters  may  be  reasonably  familiar  with  local  interests, 
and  that  election  ofificials  may  have  opportunity  to  prevent 
fraud. 

518.  Special  Restrictions.  —  As  good  government  is  im- 
possible without  intelligence  on  the  part  of  the  voting  popu- 
lation, tests  of  educational  fitness  have  been  applied  in  a 
constantly  increasing  number  of  states.  Connecticut  led 
the  way,  in  1855,  by  insisting  upon  ability  to  read  or  write. 
Massachusetts  followed,  two  years  later,  by  barring  out 
those  who  could  not  read  or  write  in  English.  Her  exam- 
ple has  been  followed  by  California,  Maine,  Wyoming, 
Delaware,  and  Connecticut.  Mississippi,  in  1890,  pro- 
vided that  if  a  man  could  neither  read  the  constitution  nor 
understand  it  when  read,  he  could  not  vote.     South  Caro- 


Alien  voters. 

Ford,  Amer. 
Citizen's 
Manual, 
85-91. 

Lyman,  J.C., 
in  A'.  A.  R., 
144  (1887), 
298-306. 

Haynes,  in 
P.S.Q.,yA\\ 
(1898),  495- 
5". 


Residence 
require- 
ments. 


Educational 
or  property 
tests. 

Oberholtzer, 
Referendum, 
120-125. 

Cf.  Appendix 
F,  Table  II. 


426 


The  American  Federal  State 


Tax  qualifi- 
cations. 


Common 

disqualifica- 

tions. 

Cf.  Appendix 
F,  Table  II. 

Woman  suf- 
frage in  state 
and  local 
elections. 


lina,  five  years  later,  adopted  the  Mississippi  method,  but 
did  not  deprive  those  who  owned  property  assessed  for  at 
least  $300,  even  when  they  were  not  intellectually  quali- 
fied. Louisiana  (1898)  and  Alabama  (1901)  embodied 
in  their  constitution  provisions  similar  to  those  of  South 
Carolina,  and  North  Carolina  (1900)  excluded  those  who 
could  not  read  and  write  in  English;  but  all  of  these  states 
indirectly  excepted  most  native  and  alien  whites  from  the 
tests.  In  a  majority  of  these  cases  the  tendency  is  a 
healthful  one,  since  the  educational  test,  though  far  from 
perfect,  is  the  best  one  yet  devised. 

Many  of  the  states  do  not  allow  people  to  vote  who  have 
failed  to  pay  taxes  assessed  upon  them.  A  few  permit  only 
property  owners  to  decide  questions  involving  finance;  but 
since  Rhode  Island  abolished  her  qualification  of  ^134, 
in  1888,  property  qualifications,  as  such,  have  not  existed. 
The  attempt  to  apply  satisfactory  tax  requirements  so  as  to 
debar  citizens  who  lack  interest  in  affairs  of  state,  has  been 
a  little  difficult  for  this  reason:  political  parties  have  gladly 
paid  the  delinquent  tax  in  return  for  continual  allegiance, 
and  the  provision  has  thus  often  worked  for  worse,  instead 
of  better,  government. 

The  most  common  disqualifications  are  idiocy,  insanity, 
and  conviction  without  pardon  for  an  infamous  crime.  A 
few  states  debar  inmates  of  public  institutions,  especially 
in  local  elections. 

519.  Woman  Suffrage.  —  During  the  last  half  century  a 
notable  work  has  been  done  by  active  and  well-organized 
forces  to  obtain  greater  justice  for  woman  in  the  courts  and 
recognition  at  the  polls.  There  is  scarcely  a  state  which 
has  not  at  some  time  submitted  to  the  people  a  constitu- 
tional amendment  giving  women  the  same  voting  rights  as 
men.  These  efforts  have  produced  results  of  two  kinds: 
(i)  In  twenty-one  states  a  limited  suffrage  has  been  granted, 
covering  usually  school  and  library  elections,  but  in  Kansas 
including  all  those  in  cities  as  well.  (2)  Four  states  make 
no  distinction  whatever  between  men  and  women  as  elec- 


Suffrage  and  Electiofts  427 

tors:  Wyoming,  which  has  had  woman  suffrage  since  1870, 
Colorado  (1893),  Utah  (1895),  and  Idaho  (1896). 

520.  Improved  and  Suggested  Means  of  ascertaining  the  in  elections 
Popular  Will.  —  Not  only  has  there  been  a  decided  tendency  ^J^^^gJ^'^o^ 
toward  placing  the  suffrage  upon  a  more  substantial  basis, 

but  what  was  equally  necessary,  laws  have  been  passed  for 
the  purpose  of  registering  more  accurately  the  wishes  of 
the  people.  These  cover  almost  the  whole  field  of  elec- 
tions, including  the  registration  of  voters,  the  ballot,  quali- 
fications of  candidates,  with  checks  upon  them  to  prevent 
the  use  of  money  for  corrupt  purposes.  They  go  farther 
and  seek  to  perfect  means  of  expressing  the  popular  will. 
Proportional  and  minority  representation  have  been  pro- 
posed and,  to  some  extent,  used  to  limit  the  undue  power 
of  majorities.  The  referendum  and  the  initiative  have 
been  extended  to  permit  voters  to  express  their  preferences 
directly  upon  different  parts  of  legislation.  A  beginning 
has  also  been  made  in  the  control  exercised  over  political 
parties,  especially  in  connection  with  primary  elections, 
but  incidentally  for  the  purpose  of  obtaining  better 
nominations. 

521.  Preelection  Requirements.  —  Almost  all  of  the  states  Registration, 
now  require  registration  of  the  voters  a  definite  time  before 

each  election,  at  least  in  the  larger  cities.  The  need  of 
having  a  list  of  voters,  which  might  serve  to  prevent  double 
voting,  was  especially  manifest  in  those  cities  where  popu- 
lation was  particularly  dense.  As  the  election  officers  could 
not  be  acquainted  with  a  large  proportion  of  the  voters,  it 
was  possible  for  men  to  vote  in  more  than  one  precinct 
without  being  easily  detected.  Under  a  strict  registration 
law  proofs  of  naturalization  are  always  required,  and  no 
person  can  register  in  more  than  one  place  with  impunity. 
Naturally,  he  can  vote  only  in  the  precinct  where  he  resides, 
and  there  is  no  difficulty  in  preventing  his  voting  more 
than  once  at  the  polling  booth. 

The  reform  of  elections  is  interwoven  with  the  control  of  Primaries, 
primaries  and  the  subsequent  influence  upon  party  nomina- 


428 


The  American  Federal  State 


Qualifica- 
tions for 
office. 

Stimson, 
Amer. 

Statute  Law, 
I,§§  220-223. 

History  of 
the  ballot. 

Spofford,  A. 
R.,  in  Lalor, 
I.  197-199- 


Introduction 
of  the  Aus- 
tralian 
ballot. 


tions.    The  discussion  of  this  all- important  subject  is  post- 
poned because  it  properly  belongs  to  the  control  of  parties 

(§§549-550- 

Qualifications  of  office-holders  elected  by  the  people  are 
prescribed  by  many  state  constitutions,  but  there  is  little 
uniformity  in  the  requirements  throughout  the  country, 
except  in  forbidding  any  person  to  hold  two  positions  of 
profit. 

522.  The  Ballot.  —  For  half  a  century  voting  by  ballot 
has  been  practically  universal  in  the  United  States.  Vir- 
ginia and  Kentucky  were  the  last  states  to  discard  the  older 
form  of  viva  voce  voting,  the  latter  within  a  few  years. 
The  ballot  was  first  introduced  in  the  Puritan  colonies  in 
the  seventeenth  century,  and  at  the  time  of  the  Revolution- 
ary War  was  in  use  in  more  than  one-half  of  the  states.  It 
was  gradually  adopted  by  all  of  the  others,  but  until  re- 
cently was  very  imperfect  in  form.  Separate  ballots  were 
usually  printed  for  each  party,  there  being  no  special  uni- 
formity and  practically  no  state  supervision.  The  ballots 
were  deposited  in  boxes  which  might  be  kept  by  the  elec- 
tion officers  where  they  pleased.  There  were  few  safe- 
guards to  prohibit  a  person  from  voting  "early  and  often," 
so  that  "  stuffing  "  the  ballot  box  and  altering  the  returns 
were  common  to  an  extent  almost  incomprehensible  to-day. 
As  party  workers  were  allowed  to  come  into  the  polling 
places  with  voters,  they  had  little  difficulty  in  ascertaining 
which  way  the  man  voted.  Intimidation  was  therefore 
common,  and  bribery  was  considered  as  a  matter  of  course 
in  all  close  elections.  So  great  was  the  need  of  change 
that  it  is  surprising  that  the  abuses  were  endured  so  long, 
but  the  avidity  with  which  the  states  adopted  ballot  reform 
within  the  closing  decade  of  the  nineteenth  century  shows 
that  everywhere  the  times  were  ripe  for  improvement. 

523.  Ballot  Reform.  — A  modification  of  the  ballot  used 
in  Australia  has  been  adopted  by  practically  all  of  the 
states.  It  was  introduced  first  in  Massachusetts,  in  1888, 
and  proved  so  satisfactory  that  the  popular  demand  for  it 


Suffrage  and  Elections  429 

was  irresistible.     All  of  the  names  of  candidates  appear  Wigmore, 

upon  a  single  large  sheet,  which  is  printed   by  proper  ^"j^*^"** 

authorities.     Copies  of  this  are  usually  distributed  to  the 

voters  before  election  so  that  they  may  become  familiar 

with  all  of  the  persons  nominated  for  office.     The  names 

are  arranged  in  one  of  two  ways :     (i)  All  of  the  candidates 

for  each  office  are  grouped  together,  with  a  blank  square 

left  after  each  name.     The  voter  indicates  his  choice  by 

making  a  cross  in  the  space  opposite  ihe  name  of  the  one 

for  whom  he  wishes  to  vote.     If  he  marks  two  names  for 

one  office,  he  loses  his  vote,  as  he  does  if  he  fails  to  place 

a  cross  opposite  any  name.     (2)  All  of  the  nominees  of 

each  party  are  placed  in  a  column  by  themselves,  a  blank 

space  being  left  after  each  name  and  at  the  head  of  the 

column.     If  the  voter  desires  to  vote  a  "straight  ticket," 

i.e.  for  members  of  one  party  only,  he  places  the  cross 

opposite  the  name  of  the  party,  otherwise  he  must  mark 

the  individuals  of  his  choice.     It  is  perfectly  evident  that 

the  second  method  makes  it  easier  to  vote  a  strict  party 

ticket. 

524.  Polling  the  Votes.  — The  polling  places  are  selected  How  votes 
by  the  authorities;  and  election  officials,  including  usually  ^''^'^a*^' 
clerks  to  keep  records  of  the  persons  voting,  and  judges  and  canvassed, 
inspectors  to  take  charge  of  the  polls,  are  all  chosen  accord-   p    j  ^ 
ing  to  law.     Each  party  is  permitted  to  have  "watchers,"    atiten's 
who  are  allowed  to  be  present  when  the  votes  are  cast  and  ■^'"'*"''. 
counted,  and  who  may  challenge  any  voter.    Where  proper 
regulations   have  been   adopted,   no   partisan  worker  is 
allowed  to  remain  within  a  certain  distance  of  the  polls, 
so  that  it  is  difficult  to  control  any  voter  directly. 

The  voter  gives  his  name  to  a  clerk,  who  looks  it  up  in 
the  register  while  others  record  the  name  and  address  and 
the  number  of  the  ballot  given  the  voter.  In  a  small  booth, 
perfectly  secluded,  the  persons  of  the  voter's  choice  are 
indicated,  the  ballot  is  folded,  and  then  handed  to  another 
official,  who  first  tears  off  the  number  and  calls  it  out  so 
that  the  recording  clerks  may  note  that  the  person  has 


430  The  American  Federal  State 

voted,  then  deposits  the  ballot  in  the  box  prepared  for  it. 
The  polls  are  usually  open  from  sunrise  to  sunset  or 
from  6  A.M.  to  6  p.m.,  but  never  for  more  than  one  day. 
When  they  are  declared  closed,  the  inspectors  count  the 
votes  and  send  the  announcement  of  the  vote,  with  the 
ballots,  to  the  proper  authorities.  These  announcements 
are  called  the  unofficial  vote.  The  ballots  are  afterward 
counted,  or  canvassed,  by  designated  state  or  county  offi- 
cials, and  then  the  official  vote  is  given  out  sometime  after 
the  election. 
Attempted  525.  "Corrupt  Practices"  Acts. — Unless  bribery  can 

prevention  of  i^g  prevented,  all  regulations  are  useless.     One  object  of 

bribery  and  •       ,      t    n  i     ,        •        ,  ,         ,  , 

corruption,  changes  in  the  ballot  and  election  laws  has  been  to  reduce 

Cf  McCook  *^^  opportunities  for  buying  votes,  and  to  make  their  sale 

J.  J.,  on  unprofitable.     Some  states  have  gone  farther,  and  require 

Venal  Voting,  ^jj  candidates  to  make,  under  oath,  an  itemized  account 

in  horutn, 

XIV  (1892).  of  all  moneys  expended  by  them  in  connection  with  the 
campaign.  The  futility  of  these  provisions  to  attain  the 
end  intended  is  acknowledged  on  all  sides.  So  long  as 
practically  all  of  the  campaign  expenses  are  borne  by  the 
various  party  committees  (§§  542-545),  and  these  com- 
mittees are  not  obliged  to  show  for  what  the  money  was 
expended,  the  result  cannot  be  satisfactory.  If  suitable 
laws  can  be  enforced,  it  will  mean  a  very  great  gain  for  good 
government;  but  the  control  of  the  financial  affairs  of  the 
political  parties  is  a  task  of  no  little  difficulty. 

Justice  of  526.   Plans  actually  used  for  Minority  Representation.  — 

proportional    r^y^^  ^^^  -^^  ^jg^y  jj^  ^^  adoption  of  the  election  safeguards 

representa- 

tion.  just  mentioned  is  "a  fair  ballot  and  an  honest  count ";  but 

Commons  ^  reform  more  radical  in  its  attempt  to  give  a  truer  repre- 
Prop.  Repre-  sentation  is  that  embodied  in  what  is  known  as  proportional 
l^^'""'  representation.  The  injustice  of  compelling  good-sized 
minorities  year  after  year  to  be  without  a  fair  representa- 
tion in  the  government,  and  perhaps  without  any,  or  pos- 
sibly without  the  prospect  of  obtaining  any,  should  appeal 
to  the  average  American  as  in  opposition  to  the  spirit,  if 
not  the  form,  of  our  institutions.     Nevertheless,  little  use 


Suffrage  and  Elections  43 1 

has  been  made  of  any  plans  for  representation  of  different 
political  views  iu  proportion  to  numbers  of  those  holding 
them,  although  many  such  plans  have  been  suggested. 

To  a  limited  extent  the  "cumulative"  vote  and  the  The  limited 
"limited"  vote  have  been  adopted.  The  limited  vote  is  *°*'' 
used  in  the  following  way :  if  there  are  eight  members  of 
a  board  of  education  to  be  elected  on  a  general  ticket, 
i.e,  by  the  city  at  large,  then,  by  the  limited  vote  method, 
each  voter  may  cast  his  ballot  for  five,  but  no  more.  In 
practice  this  has  led  each  party  to  nominate  only  five 
candidates,  the  majority  party  electing  its  five  and  the 
minority  party  the  three  highest  on  its  ticket;  but  the  voter 
has  been  able  to  choose  from  only  ten  names  for  eight  posi- 
tions, unless  independent  candidates  are  in  the  field,  so  that 
the  character  of  the  nominations  has  not  been  improved. 

The  cumulative  vote  also  requires  a  district  large  enough  The  cumuia- 
so  that  several  persons  are  elected  from  it.  Each  voter  has  '^^  ^°  ^* 
as  many  votes  as  there  are  offices  to  be  filled,  and  he  may 
cast  all  of  these  for  one  person  or  for  different  persons,  as 
he  likes.  This  is  the  Illinois  method  already  described 
(§  281).  The  principal  objection  to  it  is  that  the  minority 
party  is  often  able  to  choose  a  majority  of  the  representa- 
tives, because  some  candidates  are  sure  to  have  a  good 
many  more  votes  than  they  need,  and  these  are  wasted. 

527.  Improved  Proportional  Representation.  —  Other  plans.   Prof.  Com- 
theoretically  more  perfect,  are  so  complicated  that  they  are  "»onss  plan, 
practically  useless.     The  one  which  seems  most  likely  to  Commons, 
prove  satisfactory  uses  the  cumulative  vote,  but  combines  sentation' 
other  features  with  it.     Each  party  nominates  a  ticket  of   105-114. 
candidates  equal  in  number  to  the  offices  to  be  filled  or  cf.  Good- 
a  less  number.     Independent  tickets  are  also  permitted,   "o^,  MunU- 
The  elector  has  as  many  votes  as  there  are  positions,  and   ^^^    °_ 
he  may  place  those  where  he  pleases,  cumulating  them  or   167. 
not  as  he  prefers.     When  the  ballots  are  counted,  the  total 
vote  cast  for  all  the  candidates  is  divided  by  the  number 
of  offices,  and  the  resulting  quotient  gives  the  number  of 
voters  that  will  elect  one  candidate  on  the  average.     This 


432  The  American  Federal  State 

quotient  is  divided  into  the  whole  vote  cast  for  each  ticket, 
and  the  number  of  representatives  to  which  each  ticket  is 
entitled  is  thus  obtained.  Those  standing  highest  on  each 
ticket  which  is  entitled  to  representatives  are  elected,  the 
number  of  representatives  of  course  depending  on  the 
ticket's  vote. 

Assume  the  election  of  seven  members  of  a  board  of  education  with 
four  tickets  in  the  field.  If  the  total  vote  for  the  candidates  of  ticket 
I  is  126,4.53,  for  those  on  ticket  II,  112,310,  for  ticket  III,  97,364,  and 
on  number  IV,  52,128,  the  total  vote  would  be  388,255.  Dividing  by 
seven  we  get  a  quotient  of  55,465,  the  average  vote  for  each  ofhce. 
We  then  get :  — 

I  126,453  -f-  55,465  =  2  and  15,523  over. 

II  112,310  -T-  55,465  =  2  and    1,380  over. 

III  97,364  -f-  55,465  =  I  and  41,899  over. 

IV  52,128-^55,465  =0  and  52,128  over. 

As  there  were  seven  offices  to  be  filled,  and  the  quotients  added 
together  give  but  five,  the  other  two  belong  to  the  tickets  having  the 
highest  remainders.  That  gives  two  for  ticket  I,  two  for  II,  two  for 
III,  and  one  for  IV.  So  the  two  candidates  on  number  I  receiving  the 
highest  number  of  votes  on  their  ticket  are  elected,  and  the  others  in 
the  same  way. 

Use  with  con-  528.  The  Referendum. — The  referendum,  or  popular 
stitutions,  ratification  of  laws,  has  existed,  in  some  form,  within  the 
local  laws.       United  States  since  the  period  of    the   Revolution.      It 


Cleveland, 


was  at  first  restricted  to  constitutions,  with  constitutional 


Democracy,     amendments  added  but  little  later.     Before  1840  it  had 

177-190, 210-  been  introduced  in  connection  with  certain  local  laws  passed 
a4.i. 

by  the  state  legislature,  which  became  valid  if  approved  by 

a  specified  per  cent  of  the  voters  in  the  district  to  which 
the  law  applied.  For  example,  the  vote  of  a  county  may 
be  necessary  upon  such  subjects  as  the  division  into  two 
or  more  counties,  location  of  the  county  seat,  the  sale  of 
bonds  for  various  objects,  and  upon  the  sale  of  liquor.  In 
many  states  cities  are  never  incorporated  without  popular 
vote,  nor  are  districts  annexed  to  a  city  without  their  con- 
sent.   More  and  more  the  city  councils  are  being  restricted 


Suffrage  and  Elections  433 

in  the  appropriation  or  borrowing  of  money,  unless  they 
have  first  called  special  elections  and  obtained  the  consent 
of  the  voters. 

Rarely,  if  ever,  does  the  vote  on  any  question  affecting  state  consti- 
tutions, charters,  or  local  laws  equal  that  for  the  choice  of  officials  at 
the  same  elections,  and  usually  from  one-quarter  to  three-fourths  of 
the  voters  fail  to  record  their  preferences. 

529.  The  Initiative.  —  The  initiative  is  the  right  of  a  Limited  use 
certain  portion  of  the  voting  population  to  propose  laws.  °^  '^^  vmw^- 
There  are  two  forms  in  this  country:  the  one  little  more 

than  a  petition  by  which  the  legislative  body  is  compelled  fo^^pl%if 
to  act  upon  some  subject  desired  by  the  people;  the  other  279-283. 
demanding  a  vote,  not  of  the  legislature,  but  of  the  peo-   oberhoitzer. 
pie,  upon  the  proposed  measure.     By  the  second,  or  Swiss   h'eferendum 
method,  the  legislature  has  nothing  to  do  with  making  the   3  3  3  9- 
law.     Like  the  referendum,  the  initiative  is  the  natural, 
almost  inevitable,  product  of  democracy,  and  comes  nearer 
to  giving  government  by  the  people  than  anything  outside 
of  the  town  meeting  yet  tested.     An  early  instance  of  its 
use  is  furnished  in  the  method  of  amending  the  first  con- 
stitution of  Georgia  (1777).     This  could  be  done  only  by 
a  convention  called  on  petition  from  a  majority  of  the 
voters  in  a  majority  of  the  counties.    But  the  initiative  has 
not  thrived  like  the  referendum,  and  is  in  use  comparatively 
little  at  the  present  time.     Some  of  our  cities,  notably  San 
Francisco,  provide  that  when  fifteen  per  cent  of  the  voters 
desire  a  law,  the  board  of  supervisors  shall  submit  it  at  the 
next  election.     Nebraska  permits  the  initiative  for  certain 
local  matters,  and  South  Dakota  places  it  in  the  hands  of 
five  per  cent  of  the  voters  for  state  laws. 

530.  Advantages  of  Direct  Legislation.  —  The  indirect  Referendum 
ii;fluence  of  the  referendum  can  only  be  imperfectly  esti-   ^^  ^  '^^^^^  °" 

▼  y  1  y  representa- 

mated,  but  it  has  certainly  acted  as  a  serious  check  upon  tives  of 
constitutional  conventions  and  more  permanent  legislative  People, 
bodies.     Moreover,  it  has  educated  the  people  concerning 
the  nature  of  our  political   institutions,  because  they  are 

2F 


434 


The  American  Federal  State 


parsons, 

City  for 
People,  orj^- 
278, 362-370. 


Referendum 
in  financial 
matters. 


Good  influ- 
ence of  the 
initiative. 


Law-making 
requires 
special  train- 
ing. 


more  interested  in  those  things  in  which  they  take  part. 
When  used  for  local  affairs  it  guarantees  local  autonomy 
under  general  state  laws  which  assure  a  certain  necessary 
degree  of  uniformity.  So  long  as  it  acts  in  this  way  as  a 
conservative  force,  dealing  solely  with  matters  of  impor- 
tance, it  possesses  a  marked  value  for  both  the  people  and 
the  government. 

Where  it  takes  the  final  decision  on  matters  of  finance 
out  of  the  hands  of  county  boards,  city  councils,  or  boards 
of  public  works,  it  effectually  prevents  the  official  corrup- 
tion which  has  become  so  common  in  these  days.  If  the 
granting  of  franchises  is  always  subject  to  popular  vote, 
there  is  less  danger  that  corporations  can  influence  the 
government  to  their  own  advantage.  Until  we  shall  reach 
that  desirable  condition  where  not  even  a  fair  proportion 
of  our  representatives  "have  their  price,"  popular  partici- 
pation directly  in  the  affairs  of  the  government,  whether  for 
city  finance  or  senatorial  elections,  will  be  sought  as  the 
great  remedy  for  political  ills. 

The  initiative  gives  opportunity  to  force  legislative 
assemblies  to  respect  public  wishes,  for  it  may  demand  a 
popular  vote  on  the  subject  presented.  The  introduction 
of  measures  in  all  our  legislatures  is  comparatively  easy, 
though  after  introduction  it  is  difficult  to  compel  considera- 
tion; but  the  very  existence  of  a  means  to  pass  laws  without 
consulting  the  legislature  makes  that  body  chary  of  ignor- 
ing bills  that  are  likely  to  become  laws  through  the  initia- 
tive and  the  referendum.  To  protect  its  own  powers  and 
preserve  its  dignity,  the  assembly  is  therefore  likely  to 
itself  approve  bills  that  the  people  desire.  For  this  reason 
it  becomes  a  more  truly  representative  organization. 

531.  Disadvantages  of  Direct  Legislation. — There  is  a 
vast  difference  between  the  referendum  and  the  initiative 
as  popular  checks  upon  the  government  and  as  means  of 
actual  legislation.  The  business  of  government,  like  any 
other  business,  requires  full  knowledge,  careful  training, 
and  wide  experience.     There  are  certain  features  of  it  that 


Suffrage  and  Elections 


435 


every  adult  citizen  ought  to  understand,  but  to  expect  that 
each  one  is  fitted  to  properly  perform  the  duties  of  law- 
making is  more  than  unreasonable  —  it  is  ridiculous. 

The  whole  number  of  electors  may  be  able  to  pass  judg- 
ment upon  some  questions,  but  the  rest  should  be  left  to 
trained  public  servants.  If  this  is  not  done,  the  law  will 
lose  in  unity  and  in  character  just  in  proportion  as  it 
becomes  popular. 

A  second  defect  is  closely  connected  with  the  first. 
When  the  functions  of  government  are  assumed  by  the 
people,  and  less  dependence  is  placed  on  the  legislatures, 
less  and  less  care  is  taken  to  secure  suitable  persons  to  make 
the  laws.  The  truth  of  this  statement  is  shown  in  the  com- 
position of  our  state  legislatures  and  city  councils,  both  of 
which  have  been  shorn  of  many  powers  during  the  last  half 
century.  An  extension  of  direct  legislation  will  aggravate 
these  evils,  already  serious. 


Lowell,  A.  L., 
in  At.  Mo., 
LXXIII 
(1894),  520- 
526. 


Direct  legis- 
lation leads 
to  poorer 
legislatures. 


QUESTIONS  AND  REFERENCES 

The  Suffrage  (§§  516-519) 

a.  Follow  the  changes  in  the  qualifications  for  voters  in  England 
during  the  nineteenth  century  by  consulting  Wilson,  The  State,  §§ 
894-900,  962,992  ;  Rose,  Rise  of  Democracy,  49,  178-180,  200-210; 
Fielden,  Constitutional  History,  1 31-135  ;  Taylor,  English  Constitu- 
tion, II,  527-538. 

1.  Is  it  a  modern  political  doctrine  in  the  United  States  that  adult 
men  have  an  inalienable  right  to  vote  ?  Why  are  the  voters  as  a  whole 
always  opposed  to  an  extension  or  restriction  of  the  suffrage  ?  Prove 
from  history  whether  changes  have  been  brought  about  principally  by 
agitation  from  without  or  feeling  within  the  ranks  of  the  voters  ;  and 
if  at  any  time  within,  why  the  change  was  desired. 

2.  Compare  the  advantages  of  property,  religious,  educational,  or 
other  tests  with  those  of  manhood  suffrage. 

3.  Give  arguments  for  and  against  woman  suffrage.  In  ascertaining 
whether  women  should  be  given  the  franchise,  should  a  vote  of  the 
women  not  be  taken  ?  Is  it  probable  that  any  or  many  of  the  adverse 
majorities  of  the  past  would  have  been  reversed  by  such  a  proceeding 
if  the  women's  vote  had  been  binding  ? 


436  The  American  Federal  State 

i.  What  amount  of  property  or  land  was  ordinarily  required  in 
colonial  times  ?  When  did  the  abolition  of  property  tests  begin  and 
in  what  state  ?  What  ones  had  adopted  manhood  suffrage  by  1815  ? 
by  i860  ?    Appendix  F,  Table  I. 

ii.  What  state  has  the  most  liberal  provisions  for  voters  ?  What 
one  the  most  restrictions  ?  Where  are  the  states  located  that  permit 
prospective  citizens  to  vote  ?    How  many  ask  the  prepayment  of  taxes  ? 

iii.  What  was  the  suffrage  provision  of  your  first  constitution  ?  Trace 
the  changes  from  then  to  the  present.  Who  may  vote  in  your  state 
now  ?  Who  are  expressly  disqualified  ?  (State  Constitution.)  What 
percentage  of  the  qualified  electors  failed  to  vote  on  the  last  presiden- 
tial election  ?  the  latest  local  one  ? 


Control  of  Elections  (§§  520-525) 

1.  Would  there  be  any  advantage  of  holding  national  elections  on 
different  days  for  different  parts  of  the  country  ?  Why  should  they  be 
restricted  to  a  single  day  ? 

2.  Should  an  election  board  ever  be  composed  entirely  of  a  single 
party  ?  If  so,  why  ?  Are  there  any  reasonable  objections  to  compel- 
ling campaign  committees  to  report  their  expenses  ?  to  restricting  the 
amount  they  may  spend  ? 

i.  When  was  a  reform  ballot  introduced  in  your  state  ?  What  is 
the  form  used  ?  How  may  nominations  be  made  under  it  ?  Are  com- 
plaints of  abuse  common  ? 

ii.  In  what  precinct  do  you  live  ?  How  large  is  it  ?  How  many 
voters  does  it  contain  ?  Where  is  the  usual  polling  place  ?  Have 
ballot  machines  ever  been  tried  ? 


Proportional  Representation  (§§  526-527) 

1.  Can  we  have  proportional  representation  without  election  upon 
a  general  ticket  ?  Would  election  of  representatives  in  the  House  of 
Representatives  or  in  either  branch  of  the  state  legislature  be  as  satis- 
factory by  large  districts  each  of  which  choose  several  members  as  the 
present  method  seems  to  be  ?  Are  the  greatest  difficulties  in  intro- 
ducing proportional  representation  theoretical  or  practical,  and  what 
are  they  ? 

2.  Would  not  proportional  representation  lead  to  better  govern- 
ment even  if  the  character  of  the  candidates  was  not  greatly  improved  ? 
Name  at  least  two  reasons  why  the  tendency  would  be  to  get  better 
men. 


Suffrage  and  Elections  437 


Direct  Legislation  (§§  528-531) 

a.  On  the  future  of  democracy,  compare  the  views  given  by  Macy,  J. 
"Twentieth  Century  Democracy,"  in  P.  S.  Q.,  XIII  (1898),  514  et  seq.; 
Vrooman,  C,  "  Democracy  of  Twentieth  Century,"  in  Arena,  XXII 
(1899),  584  et  seq.;  Godkin,  Problems  of  Modern  Democracy,  275-310; 
Giddings,  Democracy  and  Empire,  197-214  ;   Hyslop,  Democracy. 

1.  Will  the  referendum  be  more  or  less  used  in  the  future  ?  Why  ? 
Is  it  desirable  that  we  should  have  more  democratic  government  than 
at  present  ? 

2.  Can  direct  legislation  be  applied  to  national  affairs  ?  If  so,  to 
what  extent  ?  Should  the  referendum  be  used  in  amending  the  national 
Constitution  ?  If  the  referendum  and  the  initiative  were  used  in  the 
cabinet  form  of  government  to  keep  the  government  in  constant  touch 
with  the  voters,  what  would  be  the  probable  effect  in  England  ? 

i.  What  forms  of  the  referendum  have  you  in  connection  with  state 
affiairs  ?  Are  the  voters  consulted  in  changing  county  lines  ?  county 
seats  ?  incorporating  villages  ?  What  laws  regarding  finance  are  first 
approved  by  them  ?  What  other  laws,  county  or  local  ?  Is  the  initi- 
ative in  use  for  any  purpose  whatever  ?  Is  it  the  Swiss  initiative  with 
compulsory  referendum  ? 


CHAPTER  XXIII 

THE  POLITICAL  PARTY 
General  References 

Willoughby,  ^i^-4/y  and  Duties  of  American  Citizenship,  297-310.  An 
excellent  summary. 

Bryce,  The  American  Commonwealth  (abd.  ed.),  447-477;  third  regu- 
lar edition,  II,  1-246.  The  latter  a  description  of  its  actual  work- 
ings, with  keen  criticisms. 

Dallinger,  Nominations  for  Elective  Office.  Gives  the  history  of  nomi- 
nating conventions,  methods  at  present,  defects  of  the  system,  and 
proposed  remedies,  with  bibliography.     Very  valuable. 

Remsen,  Primary  Elections.  A  good  brief  presentation  of  the  whole 
party  system. 

Lawton,  The  A»:erican  Caucus  System. 
The  historical  side  is  emphasized  in 

Patton,  Political  Parties  in  the  United  States.     Discursive. 

Tyler,  Parties  and  Patronage. 

Stanwood,  A  History  of  the  Presidency.  Issues  and  platforms  in  each 
presidential  campaign. 

McKee,  National  Conventions  and  Party  Platforms.    Documents  only. 

Hopkins,  History  of  Political  Parties. 

Johnston,  American  Politics.    The  work  of  the  different  Congresses. 

McClure,  Our  Presidents,  and  How  We  Make  Them.  Largely  per- 
sonal reminiscences. 

Ford,  H.  J.,  Rise  and  Growth  of  American  Politics.  A  brilliant  study 
of  causes  and  effects. 

Johnston,  in  Lalor,  under  Names  of  Parties. 

Periodical  literature  indexes  under  Political  Party,  Caucus,  Primary, 
Convention,  Machine  Rule,  Nominations,  etc.  There  is  an  im- 
mense amount  of  material  referred  to  under  title  United  States 
History. 

532.  The  Place  of  the  Political  Party  in  our  Political  Sys- 
tem. —  It  is  scarcely  too  much  to  say  that  if  government  is 

438 


The  Political  Party  439 

the  political  organization  that  carries  out  the  wishes  of  the   The  party  an 
State,  parties  are  almost  as  much  the  organizations  that  essential  part 
control  the  government.     There  is  scarcely  a  law  made,  an  chinery  of 
official  chosen,  or  a  policy  discussed  concerning  which  the  government, 
political  party  does  not  exercise  the  predominating  influence. 
This  country  does  not  have  party  government  in  the  sense 
that  the  conduct  of  all  affairs,  national,  state,  and  local,  are 
intrusted  to  a  single  party  organization,  which  carries  out 
its  plan  for  the  whole  system  of  governments;  but  it  does 
have  party  government  in  the  sense  that  the  political  party 
stands  between  the  people  and  the  government,  and  that  the 
representatives  of  the  party  which  has  the  majority  in  any 
government,  or  has  been  indorsed  by  the  majority  of  the 
voters,  control  affairs  until  they  are  turned  out  and  the 
representatives  of  a  second  party  installed. 

It  is  the  intention  in  this  chapter  to  summarize  very 
briefly  the  history  of  parties,  give  some  idea  of  the  parti- 
san methods  in  use,  to  show  the  legal  status  and  respon- 
sibility of  the  party,  and  means  suggested  to  gain  better 
results  from  party  government. 

533.  The  Federalists.  — The  history  of  our  political  par-   Party  history 
ties  is,  to  a  considerable  extent,  identical  with  the  political  ^"^  poiitica 

'  '  '^  history  inter- 

history  of  the  United  States;  but  a  clearer  conception  of  the  woven, 
work  done  or  policies  advocated  by  the  different  ones  may 
be   given   by  considering  a  few  points  purely  from  the 
standpoint  of  party. 

There  was  no  attempt  to  organize  the  adherents  of  differ-  Policies  of 
ent  theories  or  opinions  during  the  early  years  of  Washing-   I'^derahsts. 
ton's  administration,  and  the  first  parties  grew  out  of  the  Johnston,  in 
personal  differences  of  Hamilton  and  Jefferson  (§  151).    165-173.' 
The  Federalist  party,  which  remained  in  power  till  i8or, 
was  distinctly  English  in  views  and  policies.     It  stood  for 
three  things :  a  strong  central  government,  rule  by  the  aris- 
tocracy, and  alliance  with  the  commercial  classes.     The 
last  two  placed  it  out  of  touch  with  a  people  devoted  to 
agriculture  and  favoring  democracy;  and  the  Federalist 
power,  once  broken,  was  never  regained. 


440 


The  American  Federal  State 


Federalist  The  Federalist  strength  was  derived  from  the  New  England  and  the 

strength.  smaller  Middle  states,  upon  some  of  which  the  party  retained  its  hold 

for  two  decades  after  the  presidency  passed  out  of  its  hands.  In 
the  Senate  it  was  never  able  to  make  a  showing  after  1801,  but  in  the 
House  a  fair-sized  and  active  minority  continued  to  oppose  the  gov- 
ernment until  Monroe's  second  term. 


Democratic- 
Republican 
principles. 

Johnston,  in 
Lalor,  I, 
769-774. 


Changes  in 
the  Democ- 
racy. 

Johnston,  in 
Lalor,  I, 
774-779- 


534.  The  Democratic-Republican  Party.  —  While  the  party 
of  the  opposition,  the  Democratic-Republicans  favored  the 
restriction  of  national  power,  rule  by  the  people,  the  pre- 
dominance of  agricultural  interests,  and,  in  foreign  affairs, 
the  French.  With  the  election  of  Jefferson,  in  1801,  they 
abandoned  in  part  their  adherence  to  a  strict  construction 
of  the  Constitution,  but  they  never  ceased  to  prefer  the 
agricultural  sections  to  those  devoted  to  commerce.  Once 
in  power,  they  were  able  to  keep  the  Federalists  out  by 
reason  of  a  broader  national  policy,  and  because  both  the 
admission  of  new  states  and  the  more  liberal  suffrage  in  the 
others  increased  their  strength  continuously.  In  the  end 
they  carried  every  state,  as  is  shown  by  the  result  in  the 
presidential  election  of  1820. 

535.  The  Democratic  Party  (i 824-1 852).  —  In  the  very 
nature  of  things,  when  there  is  no  pressure  upon  an  organi- 
zation from  without,  disruption  is  sure  to  follow,  and  this 
was  what  happened  in  the  Democratic-Republican  party  in 
the  years  following  1824.  The  election  of  that  year,  and 
the  subsequent  contest  in  the  House  of  Representatives 
over  the  choice  of  a  President  (§  171),  produced  an  alli- 
ance of  the  loose  construction  elements  that  followed  Clay 
and  Adams,  giving  them  control  of  the  government  for  a 
time.  But  when  Crawford  withdrew  from  politics,  and  his 
adherents  went  over  to  Jackson,  the  personal  popularity  and 
magnetism  of  "Old  Hickory"  produced  a  new  Democratic 
party,  like  the  old  one,  in  being  truly  democratic  and  anti- 
commercial,  but  broader  and  more  national.  In  a  country 
still  largely  devoted  to  agriculture,  it  was  not  difficult  for 
the  Democrats  to  keep  the  government  in  their  hands  most 
of  the  time  from  1826  to  1852. 


The  Political  Party 


441 


The  parties  of  this  period  were  not  so  sectional  as  those  that  pre- 
ceded and  followed  them,  but  in  the  main  the  Democratic  party  held 
most  of  the  South,  the  extreme  West  (of  that  day),  and  part  of  the 
Middle  states.  Ihe  Supreme  Court  never  contained  a  large  number 
of  anti-Democratic  judges,  and  only  for  four  years  did  the  Democrats 
lose  either  Senate  or  presidency. 

536.  The  Whigs.  —  The  Whig  party  grew  out  of  the 
National  Republicans  or  loose  construction  element  of  the 
Democratic-Republicans.  This  reorganization  took  place 
between  the  years  1824  and  1832,  and  was  largely  due  to 
the  influence  of  Henry  Clay.  The  chief  principles  empha- 
sized by  the  Whigs  were  protection  to  home  industries 
and  internal  improvements.  They  generally  controlled  the 
New  England  and  small  Middle  states,  besides  Kentucky 
and  Tennessee;  but  the  policy  which  might  have  given 
them  the  West,  i.e.  internal  improvements,  was  less  neces- 
sary after  the  advent  of  the  railroad,  so  that  the  Northwest 
usually  went  to  their  opponents.  Once,  and  only  once, 
they  had  the  presidency,  the  Senate,  and  the  House  within 
their  grasp;  but  the  death  of  President  Harrison  and  the 
inauguration  of  the  radical  Democrat  Tyler  blasted  all 
their  hopes. 

537.  The  Second  Reorganization  (1852-1860).  —  After 
1850  there  was  only  one  really  live  political  issue  —  that 
of  slavery  —  and,  in  spite  of  themselves,  the  parties  were 
obliged  to  adapt  their  platforms  and  policies  to  it,  after 
in  vain  trying  to  keep  it  out  of  politics.  The  Whigs  held 
antislavery  views,  on  the  whole;  but,  especially  after  the 
crushing  defeat  of  1852,  could  not  rally  enough  Northern 
members  to  form  an  antislavery  party.  They  therefore 
disappeared  and,  after  1854,  the  anti-Nebraska,  or,  as  it 
was  a  little  later  called,  the  Republican  party,  united  the 
antislavery  forces.  The  Democrats  managed  for  a  time  to 
keep  all  the  pro-slavery  elements  and,  in  addition,  main- 
tained their  organization  in  the  North  by  favoring  popular 
sovereignty;  but  in  i860  the  clash  between  North  and 
South  broke  even  that  party  into  two  wings. 


Successes  of 
the  Demo- 
crats. 


Political 
doctrines  of 
the  Whigs. 

Johnston,  in 
Lalor,  III. 
1001-1008. 


The  slavery 
question  in 
politics. 

Johnston,  in 
Lalor.  I, 
779-782;  III, 
597-599- 

Stan  wood. 
Hist,  of  the 
Presidency, 
244-297. 


442 


The  American  Federal  State 


American 
party. 

Johnston,  in 
Lalor,  I,  85- 
87. 


Policies  and 
victories. 

Johnston,  in, 
Lalor,  I, 
782-788;  III, 
599-603. 


Meanwhile,  those  who  were  unwilling  to  take  sides  on  the  slavery 
question  organized  a  widespread  secret  society,  popularly  known  as 
the  "  Know-nothings,"  from  their  unwillingness  to  betray  their  secrets. 
Its  principal  object  was  to  keep  foreigners  from  obtaining  citizenship 
or  holding  office  until  after  a  residence  of  twenty-one  years.  Before 
the  slavery  question  became  very  acute,  this  party  was  able  to  carry 
several  states,  and  in  1856  and  in  i860  it  polled  a  large  vote. 

538.  The  Parties  since  i860.  —  Brought  into  power,  in 
i860,  by  the  dissensions  in  the  Democratic  ranks,  the 
Republicans  remained  in  possession  of  Congress  till  1875, 
and  of  the  presidency  till  1885.  Since  those  dates  it  has 
shared  both  legislative  and  executive  departments  with  the 
Democratic  party,  each  having  the  presidency  eight  years 
and  control  of  the  House  for  nearly  equal  periods, 
though  the  Senate  has  been  Republican  most  of  the  time. 
Before  1880  the  parties  were  divided  principally  over 
issues  arising  from  the  War  of  Secession;  from  1880  to 
1892  the  question  of  the  tariff  was  most  prominent;  from 
1892  to  1898  the  silver  difficulty  absorbed  popular  atten- 
tion; and  since  1898  the  problems  growing  out  of  the 
Spanish-American  War  have  been  given  first  place. 


Policies  be- 
fore 1876. 

Stanwood, 
Prtsiiiency, 
298-356. 


Presidential 
election  of 
1880. 

Stanwood, 
394-418. 


In  the  elections  from  1866  to  1876  the  important  topics  dealt  with 
home  manufactures  and  paying  the  debt  in  coin,  these  being  pro- 
claimed by  the  Republicans,  and  incorporated  into  the  laws.  The 
opposition  was  not  well  organized  nor  united  except  in  opposing  the 
Republican  administrations.  While  the  carpet-bag  governments  con- 
trolled most  of  the  Southern  states,  even  flagrant  abuses  of  power  by 
the  Republicans  did  not  lead  to  national  Democratic  majorities;  but 
as  the  whites  gradually  regained  the  ascendency  in  the  reconstructed 
states,  and  federal  forces  which  had  controlled  elections  were  with- 
drawn under  Hayes,  there  was  welded  together  a  "  solid  South  "  that 
has  never  yet  been  broken  except  on  the  northern  border. 

539.  The  Tariff  Campaigns. — The  interest  in  the  campaign 
of  1 880  centres  not  so  much  in  the  struggle  between  the  parties,  close 
as  that  was,  as  in  the  factional  contest  in  the  Republican  convention 
between  the  followers  of  James  G.  Blaine  and  the  adherents  of  Grant, 
who  sought  to  nominate  him  for  a  third  term.  After  many  futile  bal- 
lots, the  Blaine  men  rallied  to  the  support  of  James  A.  Garfield,  a 
"  dark  horse,"  but  during  the  campaign  he  received  only  half-hearted 


The  Political  Party 


443 


support  from  the  Grant,  or  better,  the  Conkling  wing,  and  after  the 
inauguration  there  was  an  open  rupture  between  the  two  that  had  a 
considerable  influence  for  several  years.  The  question  of  the  tariff 
was  not  raised  at  first,  but  just  before  the  election  the  Republicans 
denounced  the  "  free  trade  "  propositions  of  the  Democrats  with  tell- 
ing effect.    The  result  was  the  election  of  Garfield  and  Arthur. 

Pour  years  later,  the  Republicans  came  out  more  pronouncedly  for 
"  protection,"  while  the  Democrats  favored  "  tariff  reform."  For  the 
first  time  in  twenty-five  years  the  Republicans  were  defeated,  the  elec- 
tion of  Cleveland  over  Blaine  being  due  principally  to  the  support 
which  the  former  derived  from  the  independent  Republicans  and  the 
failure  of  Conkling  to  come  out  for  Blaine. 

In  1888,  and  again  in  1892,  the  election  turned  more  than  in  any 
previous  years  upon  the  question  of  "  protection  "  or  "  tariff  for  rev- 
enue only."  The  platforms  were  more  explicit  than  in  former  cam- 
paigns, and  the  candidates  were  the  same  in  both  years,  Cleveland 
being  nominated  by  the  Democrats  and  Benjamin  Harrison  by  the 
Republicans.  In  1888  the  Republicans  secured  not  only  the  presi- 
dency, but  small  majorities  in  both  houses.  This  enabled  them  to 
carry  through  several  party  measures  which  were  not  approved  by  the 
voters  in  either  1890  or  1892,  Cleveland  being  elected  in  the  latter 
year  by  fairly  large  pluralities  in  the  states,  but  a  very  large  majority 
in  the  electoral  college, 

540.  The  Campaigns  of  1896  and  1900. — Beginning  in 
1890,  there  had  arisen  in  the  West  a  new  party,  whose  avowed  object 
was  to  secure  from  the  national  government  legislation  that  would 
directly  benefit  the  agricultural  classes.  A  large  vote  was  polled  in 
1890,  and  in  1892  twenty-two  electoral  votes  were  secured  in  the 
electoral  college.  The  hard  times  after  1893  ^^^  the  anti-silver 
actions  of  the  government  at  Washington  united  the  West  in  favor 
of  the  free  coinage  of  silver  as  the  best  means  of  securing  the  desired 
legislative  relief.  So  strong  was  this  movement  that  in  1896  it  con- 
trolled the  convention  not  only  of  the  People's  party,  but  of  the  Demo- 
cratic party  as  well,  both  of  which  nominated  William  J.  Bryan  for 
President,  and  demanded  the  free  coinage  of  silver  at  the  former  legal 
ratio  of  sixteen  to  one.  The  Republican  convention,  held  before  either 
of  the  others,  nominated  William  McKinley,  and  favored  international 
bimetallism,  but  sought  to  subordinate  the  silver  issue  to  that  of  pro- 
tection. In  the  November  election  the  East  supported  the  Repub- 
lican ticket  and  the  West  the  Democratic  candidate,  without  much 
regard  to  party.  The  majorities  in  the  manufacturing  states  for  the 
one,  and  the  mining  states  for  the  other,  were  unprecedented,  but 
the  electoral  majority  for  the  Republicans  was  nearly  one  hundred. 


Election  of 
1884. 

Stanwood, 
419-449. 


Elections  of 
1888  and 
1892. 

Stanwood, 
450-518. 


People's 
party  and 
election  of 
1896. 

Stanwood, 
519-569- 


444  The  American  Federal  State 

The  cam-  The  same  nominees  ran  in  1900  as  in  1896,  but  the  silver  issue  was 

paignofi90o.  subordinated  to  that  of  "imperialism."  The  Republicans  indorsed 
their  acts  legally  establishing  the  gold  standard,  and  declared  them- 
selves in  favor  of  holding  and  governing  the  possessions  acquired  in 
the  treaty  of  Paris  (1898).  The  Democrats  again  indorsed  free  silver 
coinage  at  the  ratio  of  sixteen  to  one,  but  asserted  that  "  imperialism 
is  the  paramount  issue,"  and  that  the  United  States  should  merely 
assure  to  the  inhabitants  of  the  colonies  the  right  of  self-government. 
Bryan  was  also  nominated  by  the  Silver  Republican  convention  and 
one  of  those  held  by  the  People's  party;  but,  although  the  state 
pluralities  were  almost  everywhere  more  uniform,  the  Republican 
majorities  were  greater  than  in  1896. 
Minor  parties  Since  1870  the  Prohibition  party  has  always  had  nominees,  while 
smce  1870.  the  Labor  party  dates  from  about  the  same  time.  The  Socialist  Labor 
party  and  the  Social  Democrats  usually  have  tickets  in  the  field,  and 
the  non-fusion  Populists  nominate  separate  candidates.  The  only 
minor  parties  which  have  polled  large  votes  were  the  Greenback 
party  in  1878  and  the  People's  party  from  1890  to  1894. 

A  gloomy  541,  The  Work  of  a  Party.  — A  great  many  pessimists 

^'^'  would  undoubtedly  say  that  the  work  of  the  political  parties 

consists  in  controlling  the  governments  for  the  sake  of  the 
patronage  or  "spoils  of  office."     Unfortunately,  there  is 
considerable  truth  in  the  statement;  but  it  is  true  because 
of  abuses  which  have  been,  and  can  be,  remedied. 
Three  tasks         Whatever  the  motives  of  the  parties  may  be,  the  people 
forlh^mtm-  d^^^^^e  to  express  their  wishes  through  them;  and  in  order 
bersofa         that  this  may  be  possible  each  party  must  do  three  things: 
party.  ^^^  j^  expresses  the  views  and  formulates  the  principles  of 

the  groups  of  persons  who,  because  they  think  alike,  form  a 
certain  party.  This  is  done  presumably  in  the  platform, 
which  is  elaborated  and  explained  during  the  campaign. 
It  is  expressed  more  honestly  and  exactly  by  the  laws  made 
after  the  election,  if  the  party  has  a  majority  sufficient  to 
permit  unaltered  partisan  measures  to  be  passed.  (2)  The 
party  furnishes  the  machinery  by  which  its  members  may 
nominate  candidates  for  elective  offices,  thus  insuring  to 
the  party  voter  a  set  of  persons,  of  his  own  political  views, 
for  whom  he  may  cast  his  ballot.  But  as  these  two  pre- 
liminaries are  of  no  practical  value,  if  the  other  side  wins 


The  Political  Party  445 

at  the  polls,  the  party  (3)  maintains  an  organization  which 
includes  every  hamlet,  but  concentrates  power  so  as  to 
avoid  all  possible  friction.  Ti:ie  true  work  of  this  huge 
machine,  for  such  it  must  be,  is  to  secure  the  election  of 
its  candidates  by  every  method  it  can  devise. 

542.  The  Permanent  Party  Committees.  —  At  the  present  Party  organi- 
time  the  formulation  of  platforms  and  the  nomination  of   ^''''f" '  '^°"'" 

■^  ,  mittees  and 

candidates  is  everywhere  performed  by  conventions,  which  conventions. 

meet  some  time  before  the  elections;  while  the  conduct  Rg^jsen 

of  the  campaign  belongs  to  permanent  committees,  which  Primary 

affect  so  vitally  the  work  of  the  party  that  they  deserve  to  ^^'l""'' 
be  considered  first. 

Each  party  has  as  many  sets  of  these  committees  as  there  Complete- 
are  kinds  of  political  divisions  in  the  United  States,  i.e.  ""^  °.,|  * 
'^                                                                                  '  committee 

there  is  a  national  committee  for  the  country  at  large,  a  system, 
committee  for  each  state,  one  for  each  county,  city,  town, 
ward,  and,  perhaps,  assembly  district.     All  of  these  have  a 
great  deal  of  power,  but  the  ones  for  the  smaller  territorial 
districts  have  the  most. 

543.  The  National  Committee  is  composed  of  one  mem-  Composition 
ber  from  each  state  chosen  for  a  period  of  four  years.  The  *"  sessions, 
committeemen  may  be  elected  by  the  state  conventions 

which  invariably  meet  just  before  each  national  conven- 
tion, or  by  the  delegates  from  the  state  to  the  same  national 
convention.  Their  important  duties  relate  to  the  presi- 
dential campaign.  Toward  the  close  of  the  year  preceding 
a  presidential  election,  they  hold  sessions  for  the  purpose 
of  deciding  where  the  convention  shall  be  held.  At  this 
meeting  the  claims  and  attractions  of  the  cities  desiring 
the  convention  are  set  forth  by  some  popular  resident, 
after  which  the  committee  announce  their  decision  as  to 
when  and  where  the  next  national  convention  shall  meet. 

For  the  prosecution  of   the   campaign   the  committee   National 
chooses  certain  of  its  members  as  an  executive  committee,   ^'^'^"'L^L 

'    committee, 
the  chairman  of  the  latter  having  the  real  charge  of  the 

campaign,   though  often  not  a  member  of   the   national 

committee  at  all. 


446 


The  American  Federal  State 


Funds  for 
speakers  and 
literature. 


Composition 
and  tenure. 

Remsen, 
Primary 
Elections, 
37-47. 


Work  of  the 
state  com- 
mittees. 


Influence  of 
the  local 
committees. 


The  machine 
and  how  it 
maintains  its 
power. 


Two  parts  of  the  work  stand  out  in  especial  prominence: 
one  connected  with  raising  funds,  the  other  with  gaining 
votes.  Contributions  are  ordinarily  made  by  interested 
members  of  the  party,  some  of  this  going  to  the  local  com- 
mittees and  some  to  the  national  committee.  That  in  the 
hands  of  the  latter  is  used  to  pay  the  speakers  selected  to 
make  tours  in  doubtful  states  and  to  pay  for  the  enormous 
amount  of  campaign  literature  and  other  matter,  printed 
under  the  direction  of  the  executive  committee,  that  is 
scattered  broadcast  over  every  state  in  the  Union. 

544.  State  and  Local  Committees.  —  These  committees  are 
more  likely  to  be  on  duty  constantly  than  the  national  com- 
mittee, for  local  and  state  elections  occur  frequently. 
They  are  made  up  of  representatives  from  each  of  the  next 
smaller  political  division;  e.g.  the  state  committee  is  com- 
posed of  partisans  from  the  counties,  and  the  city  committee 
of  those  from  the  wards.  The  tenure  is  apt  to  be  shorter 
than  four  years,  but  reelection  is  the  rule,  except  when  a 
revolt  takes  place  within  the  ranks. 

The  state  committee  designates  the  time  and  place  for 
the  state  convention,  and  always  seeks  to  control  its  organ- 
ization as  well  as  the  nominations  it  makes.  The  com- 
mittee also  oversees  the  local  committees  and  takes  charge 
of  state  and  congressional  elections. 

The  importance  of  the  "  lowest "  committees  grows  out 
of  the  personal  influence  which  they  exert  directly  upon  the 
voters.  They  make  this  felt  either  at  the  time  the  prima- 
ries are  held,  in  order  to  have  each  primary  choose  the 
delegates  which  the  committees  desire  during  the  cam- 
paign, by  personal  work  among  the  electors;  or  at  the 
polls,  by  bringing  the  indifferent  ones  to  vote. 

545.  The  Boss  and  the  Machine.  —  The  hierarchy  of  per- 
manent committees  is  usually  spoken  of  as  the  "machine." 
The  term  is  ordinarily  one  of  disapproval,  because  most 
machines  have  the  interests  of  the  party  less  at  heart  than 
their  own  advancement.  More  often  than  not  they  have 
become  those  most  undemocratic  institutions,  "  close  cor- 


The  Political  Party  447 

porations, "  whose  real  aim  is  to  perpetuate  their  own  power.   Bryce,  Amer. 
This  they  do  by  controlling  all  of  the  elective  offices  and,   ^^'il^"[ ^ 
through  them,  the  appointive  ones;  but  this,  in  turn,  neces-  reg.  ed.).  ii. 
sitates  the  control  of  the  nominations.     Yet,  in  order  to  82-106. 
get  their  men  nominated,  they  must  have  the  right  dele- 
gates, and  to  obtain  these  the  primaries  must  be  favorable 
to  the  machine.    Accordingly,  their  chief  aim  is  to  control 
the  primaries,  for  if  they  fail  completely  to  gain  these,  their 
power  is  gone.    As  they  alone  call  the  primaries  and  decide 
who  may  go,  the  primary  usually  elects  whom  they  desire. 
But  when  it  hesitates,  the  machine  has  often  resorted  to  force 
or  fraud  to  carry  out  its  programme.     So  absolute  has  the 
power  of  the  machine  over  the  primaries  become  in  many 
large  cities  that  the  citizens  are  unwilling  to  attend,  and 
the  politicians  have  everything  their  own  way. 

The  "boss"  is  the  person  who  dominates  the  machine.   The  boss. 
or  the  part  of  it  in  his  district.     He  is  ordinarily  a  keen  Bryce,  Amer. 
student  of  nature  and  a  shrewd,  energetic  man  of  affairs.    Common- 
Boss  rule  is  objectionable  principally  because  it  represents  ^"'_^j'    ' 
an  extreme  form  of  dictatorial  power  without  the  least 
chance  of  enforcing  responsibility. 

546.  The  National  Convention :  Composition  and  Organiza-  Election  of 
tion. — The   temporary,   as   distinguished    from   the   per-   '^^'^sates. 
manent,  organization  of  the  party  is  represented  by  the  Daiiinger, 

T'        ^1  .•         1  .^'        .1        Nomination 

nominating  convention.  Por  the  national  convention  the  for  Elective 
call,  as  stated  above,  is  given  about  six  months  before  Office,  7 ^-^i. 
the  convention  meets  in  the  early  summer  of  the  presiden- 
tial year.  The  number  of  delegates  is  twice  that  of  the 
senators  and  representatives  from  each  state;  and  although 
the  whole  of  a  state's  delegation  may  occasionally  be  chosen 
by  a  state  convention,  summoned  for  that  purpose,  the  cus- 
tom is  to  have  the  state  convention  choose  four  delegates 
at  large  (corresponding  to  the  two  senators),  and  have  con- 
ventions in  each  congressional  district  appoint  two  dele- 
gates, besides  the  alternates  who  are  to  serve  in  case  of  need. 

Before  the  convention  is  called  to  order  by  the  chairman  Preliminary 
of  the  national  committee,  each  state  delegation  holds  a  ^"*'"- 


448 


The  Afnerican  Federal  State 


Dallinger, 
78-84. 


Report  of 
committee 
on  resolu- 
tions. 


Nomina- 
tions. 

Dallinger, 
84-87. 


Different 
methods. 


meeting  and  selects  a  national  committeeman  to  serve  for 
the  next  four  years,  and  a  member  for  each  of  the  four  con- 
vention committees  on  organization,  credentials,  rules,  and 
resolutions.  On  the  first  day  the  vote  upon  temporary 
chairman  may  constitute  a  test  of  the  strength  of  the  differ- 
ent candidates  or  policies,  but  that  cannot  be  definitely 
determined  till  later,  after  the  report  of  the  committee  on 
the  credentials  of  contesting  delegations. 

547.  The  Platform  and  the  Nominees. — About  the  third 
day  the  committee  on  resolutions  reports  the  platform. 
There  may  be  little  or  no  opposition  to  any  of  the  planks, 
and  the  motion  to  adopt  be  purely  perfunctory;  or  a  plank 
may  be  changed  or  modified,  if  it  relates  to  something  im- 
portant, or  accepted  only  after  heated  debate  and  a  fairly 
close  vote,  as  in  Chicago  in  1896. 

Nominations  are  then  in  order  and  the  roll  of  the  states 
is  called.  Presentation  of  names  is  always  accompanied 
by  complimentary  speeches,  followed  by  a  second  or  even 
third  laudatory  effort.  The  number  of  candidates  averages 
from  eight  to  ten,  most  of  them  favorite  sons,  to  whom 
a  small  vote  is  given  on  the  first  ballot  as  a  token  of 
appreciation. 

In  the  conventions  of  the  two  great  parties  methods 
differ  little  except  in  two  respects:  the  Republicans  per- 
mit each  delegate  to  vote  as  he  pleases,  and  require  only 
a  majority  to  nominate;  the  Democrats  have  each  state 
delegation  cast  its  vote  as  a  unit,  i.e.  all  for  the  same 
person,  and  demand  two-thirds  of  the  votes  before  anyone 
is  chosen. 


Observations 
on  historical 
nominations. 


Presidential  candidates  are  occasionally  nominated  by  acclamation, 
as  Grant  was  in  1872  and  Cleveland  in  1892,  or  as  many  as  fifty-three 
ballots  may  be  taken,  as  in  the  Whig  convention  of  1S52.  Where 
several  ballots  have  been  cast  without  result,  the  nomination  has  gone 
eventually  to  some  comparatively  unknown  person  who  at  first  re- 
ceived but  a  small  vote  or  none  at  all;  but  invariably  when  one  can- 
didate receives  a  sufficient  number,  one  of  his  less  fortunate  opponents 
moves  that  the  nomination  be  made  unanimous.  The  work  of  the 
convention  closes  with  the  selection  of  a  nominee  for  Vice-president, 


The  Political  Party  449 

the  position  usually  going  to  the  leader  of  some  faction  or  to  a  partisan 
from  a  different  section  from  that  of  the  President. 

The  later  work  of  the  party  in  connection  with  the  campaign  and 
the  electoral  college  has  already  been  considered  (§§  331,  332). 

548.  State  and  Local  Conventions.  —  At  the  present  time  Composi- 
practically  all  the  important  nominations  for  elective  office,   *'°°* 
except  those  of  President  and  Vice-president,  are  made  by  Daiiinger, 
state  and  local  conventions.    These  are  usually  large  bodies    ^   ^' 
composed  of  several  hundred  delegates,  who  are  chosen  in 
the  primaries  for  city,  county,  or  even  congressional  dis- 
trict conventions,  but  for  state  conventions  are  selected  by 
those  of  the  localities.     All  of  these  conventions  are  called 
by  the  appropriate  permanent  committee,  the  chairman  of 
which  presides  over  the  deliberations  of  the  conventions 
until  their  officers  are  chosen. 

The  first  duty  is  ordinarily  to  appoint  convention  com-  State  and 
mittees  upon  credentials,  organization,  and  resolutions,  all  |f(^sat°work" 
of  whom  have  been  selected  beforehand  by  the  permanent 
committee  so  as  to  facilitate  the  conduct  of  business.     The  59-62, 65-73. 
committee  on  credentials  decides  which  of  two  contesting  ^ 

°    Remsen, 
delegations  shall  be  seated,  its  task  being  similar  to  that  primary 

of  the  committee  on  elections  in  the  House  of  Representa-  E,iections, 
tives  (§  282).  That  on  organization  reports  a  list  of  officers, 
including  chairman,  secretary,  and  many  honorary  vice- 
presidents,  while  the  one  on  resolutions  reads  a  platform 
agreed  upon  before  the  convention  met.  If  there  is  no 
opposition,  all  of  these  things  occupy  little  time,  and  the 
convention  then  devotes  itself  to  the  nomination  of  candi- 
dates. The  machine  has  always  agreed  upon  a  "slate," 
or  list  of  candidates,  but  there  is  no  outward  evidence  of 
such  preconcerted  action  except  the  smoothness  with  which 
everything  is  done.  Nominations  are  made  for  each  office 
separately,  the  merits  of  the  respective  candidates  being 
extolled.  If  but  one  person  is  suggested  for  the  position, 
no  formal  ballot  is  taken,  otherwise  balloting  continues 
until  some  one  has  a  majority  of  all  the  votes  cast.  When 
all  the  nominations  have  been  made,  the  convention  ad- 
ze 


450 


The  American  Federal  State 


The  citizen 
and  the 
primary. 

Remsen, 
48-58. 

Dallinger, 
95-126. 


Need  of  re- 
formed pri- 
maries. 

Remsen, 
91-98. 


journs,  the  length  of  its  session  having  depended,  to  a  large 
extent,  upon  how  well  the  machine  has  it  in  hand. 

549.  The  Primary.  — A  primary  is  a  mass  meeting  of  the 
party  voters,  in  a  definite  locality,  called  by  the  local  com- 
mittee for  the  purpose  of  selecting  nominees  for  office  and 
delegates  to  party  conventions.  When  once  the  electors 
have  started,  in  the  primaries,  the  machinery  by  which 
platforms  are  constructed  and  nominations  for  all  offices 
are  made,  they  stand  aside  until,  on  election  day,  they  may 
choose  between  the  candidates  of  their  own  party  or  those 
of  another.  As  the  election  may  offer  but  a  choice  between 
two  unsatisfactory  men,  the  voter  may  be  compelled  to  exert 
an  influence  in  the  primary  or  not  at  all.  But,  as  we  have 
already  seen,  in  the  primary  he  must  fight  the  machine; 
and  to  the  machine  the  control  of  the  primary  is  a  matter 
of  life  or  death,  unless  it  is  working  for  the  public  good  and 
not  for  private  gain.  Yet  the  strangest  thing  of  all  is,  that 
the  citizen  ordinarily  makes  no  effort  to  assert  his  rights  at 
this  point,  where  it  might  have  some  effect.  Usually  he 
stays  away;  but  when  he  goes,  more  often  than  not  he  offers 
no  opposition  to  machine  dictation.  Perhaps  this  is  due 
to  his  belief  that  protest  is  futile,  possibly  to  lack  of 
organization  in  the  anti-machine  element,  but  probably  to 
indifference.  He  may  even  support  the  "  slate  "  proposed 
because  it  contains  two  or  three  good  names  placed  upon  it 
to  tempt  the  waverers,  while  the  others  he  does  not  know. 
Whatever  the  reasons  may  be,  it  is  a  fact  that  never,  for 
any  length  of  time,  in  any  of  our  large  cities,  has  the 
machine  loosened  its  hold  upon  the  primary,  while  even 
in  rural  districts  the  organization  is  complete  and  the 
primaries  more  or  less  under  machine  rule. 

550.  Reform  of  the  Primary.  —  The  importance  of  the 
primary  to  pure  politics  is  so  generally  recognized  that 
numberless  suggestions  have  been  offered  of  means  for 
making  it  serve  the  purpose  it  was  intended.  It  must  be 
apparent  that  improvements  in  the  suffrage,  in  the  ballot, 
and  in  the  elections  themselves  must  be  more  or  less  worth- 


The  Political  Party  451 

less  if  the  primaries  remain  unreformed.  These  other 
things  touch  the  surface  and  perhaps  deceive  us  by  the 
good  appearance  they  make;  but  the  primaries  are  the 
heart  of  the  body  politic,  and,  if  they  are  corrupt,  it  cannot 
be  different.  Reform  so  far  has  made  little  progress,  as 
the  machine  primary,  like  old  Proteus,  has  a  wonderful 
capacity  for  changing  its  form  and  eluding  our  grasp. 

551.  Public  Control  of  the  Primaries. — Effort  has  been  The  problem 
principally  directed  toward  bringing  the  whole  system  of  °^P"^|'*^ 
nominations  under  the  control  of  the  state.  Laws  have 
been  passed  relative  to  the  times  primaries  shall  be  held,  /dominations 
those  who  shall  take  part  in  them,  the  polling  and  counting  183-189. 
of  the  votes,  and  the  holding  of  subsequent  conventions. 
The  subject  is  of  such  vital  interest  to  the  welfare  of  the 
community  and  the  preservation  of  its  popular  government 
that  state  control  is  theoretically  indispensable  if  abuses 
exist,  which  we  are  not  blind  enough  to  doubt.  But  the 
problem  is  just  as  complex  after  the  state  endeavors  to  solve 
it  as  before.  For  example,  shall  the  state  lay  down  a  rule 
to  determine  who  shall  vote  at  the  Republican  and  Demo- 
cratic primaries,  or  shall  it  leave  that  difficult  question  to 
the  party?  If  to  the  latter,  what  is  to  prevent  a  committee 
from  restricting  the  right  to  vote  in  its  own  interest?  If 
by  the  state,  what  shall  the  rule  be?  Several  have  been 
tried.  One  makes  it  necessary  for  the  voters  to  register 
with  some  party  at  the  previous  election,  but  such  public 
allegiance  has  more  than  once  endangered  business  posi- 
tions. Another  gives  each  voter  at  a  public  primary  election 
ballots  for  all  the  parties  and  allows  him  to  cast  whichever 
one  he  wishes,  but  it  permits  followers  of  one  party  to  vote 
the  other  ticket  for  the  express  purpose  of  selecting  unfit 
men  as  delegates  and  candidates.  A  third  makes  it  depend 
upon  whether  the  elector  supported  the  candidates  of  the 
party  at  the  last  election  or  will  at  the  next  one,  but  with  a 
secret  ballot  the  test  must  be  imperfect.  All  this,  however, 
is  by  way  merely  of  illustration,  giving  some  sidelights  on 
just  one  side  of  one  problem.     As  a  matter  of  fact,  few 


452 


The  American  Federal  State 


Vast  extent 
of  public 
patronage. 


States  have  done  much  in  regulating  primaries  or  other 
party  meetings,  and  most  of  those  leave  this  particular  ques- 
tion of  who  may  vote  in  the  primaries  to  the  parties  them- 
selves. None  of  the  laws  have  done  more  than  abolish 
"snap"  primaries,  i.e.  those  called  on  insufficient  notice, 
and  guarantee  fair  treatment  to  the  rank  and  file.  The 
primary  is  still  Proteus. 

552.  Importance  of  Nominations.  —  It  is  scarcely  neces- 
sary to  call  attention  to  the  close  connection  between  sat- 
isfactory nominations  and  good  government,  but  a  brief 
summary  of  the  number  of  elective  offices,  and  the  appoin- 
tive ones  that  belong  to  them,  may  give  us  a  clearer  idea 
of  the  need  of  the  best  methods.  There  are  less  than  500 
persons  elected  by  the  people  who  are  connected  with  the 
national  government,  yet  those  500  have  at  their  disposal 
over  100,000  appointments,  many  of  them  to  first-class 
positions.  Less  than  100,000  regular  paid  officials  are 
elected  by  the  voters  in  our  states,  counties,  cities,  towns, 
and  other  local  districts,  but  probably  between  200,000  and 
250,000  persons  besides  those  in  the  schools  are  appointed 
in  these  same  governments,  very  few  of  whom  are  selected 
solely  or  chiefly  because  of  ability.  Thus,  at  present, 
patronage  running  up  into  hundreds  of  millions  a  year  is 
the  reward  not  so  much  of  the  persons  elected  as  of  the 
power  behind  the  throne  —  the  machine.  The  immense 
influence  wielded  because  of  the  control  over  so  many 
places,  coupled  with  the  advantages  that  may  be  derived 
from  handling  $1,000,000,000  a  year  for  other  purposes, 
has  developed  and  maintained  the  machine  organization. 
The  temptation  to  turn  these  party  organizations  into  close 
corporations  has,  consequently,  been  too  strong  to  be  re- 
sisted, except  in  the  rural  districts  and  a  few  urban  ones, 
and  the  committees  that  were  meant  to  serve  their  party 
have  more  often  come  to  dominate  it.  Their  control  may 
be  partially  loosened  by  bringing  state  and  local  positions 
under  civil  service  rules,  but  can  be  removed  by  leaving  the 
committees  only  a  just  share  in  the  privileges  of  nomination. 


The  Political  Party  453 

553.  Direct  Nominations.  —  The  convention  system  of  Nomination 

nominations  has  been  used  so  long  and  so  universally  that  o'^^^''^^*" 
it  seems  indispensable;  yet  many  favor  a  change  for  the 

purpose   of   obtaining   more   satisfactory   candidates   and  59-63.   ' 

reducing  the  influence  of  the  machine.     These  results,  it  ^  „. 

°  Dalhnger, 

is  claimed,  have  been,  and  can  be  secured,  through  a  127-130. 
method  of  direct  nominations  tried  in  the  localities  of  a 
few  states.  The  general  principle  underlying  the  plan  is, 
that  the  people  vote  directly  upon  the  candidates  for  nomi- 
nation. Any  one  who  can  get  a  certain  number  of  signa- 
tures to  a  petition,  and  will  pay  a  nominal  sum  for  having 
it  filed  with  the  county  clerk,  is  placed  upon  the  list  of 
candidates  for  his  party.  Upon  a  day  set  by  law,  election 
booths  are  opened  and  each  voter  may  cast  one  ballot  desig-  ' 
nating  the  candidate  of  his  choice  for  each  office.  Those 
receiving  a  larger  vote  than  any  other  candidate  of  the 
same  party  for  that  office  are  declared  the  nominees,  and  as 
such  are  placed  upon  the  official  ballot  at  the  next  election. 

The  weak  point  in  the  scheme  is  the  necessity  for  legally  Defect  of 

determining  who  shall  vote  in  connection  with  each  party,    '^"■^'^* "°™"' 
,  ,        .         ,  .  ,      .  ,       ,  .         ,         ,  nations. 

or  of  leaving  the  parties  to  decide  the  question  for  them- 
selves under  general  restrictions.  In  addition,  the  diffi- 
culties encountered  in  using  it  for  any  large  district  have 
as  yet  prevented  its  trial  except  for  small  territories.  Its 
advocates,  however,  assert  that  it  has  brought  to  the  front 
a  class  of  men  who  would  have  nothing  to  do  with  the  old 
order  of  things,  and  that  it  has  completely  undermined  the 
power  of  the  self-seeking  machine. 


History  of  Parties  (§§  532-540) 

a.  Different  accounts  of  the  election  of  i860  are  given  in  Scbouler, 
United  States,  V,  6,(i^-^(K);  McQure,  C«r /'r«id'<r«/j,  154-182;  Stan- 
wood,  History  of  the  Presidency,  279-297;  Rhodes,  United  States,  II, 
440-502, 

I.  To  what  extent  were  the  parties  before  i860  occupied  with  con- 
stitutional questions  ?     Is  it  true  that  the  one  in  power  was  always 


454  The  American  Federal  State 

loose  constructionist  in  practice  ?    Why  are  constitutional  issues  less 
prominent  to-day  ? 

2.  Explain  as  fully  as  possible  the  failure  of  the  Federalists  to  re- 
gain control  of  the  government.  Compare  the  Whig  party  in  compo- 
sition and  principles  with  the  Federalists.  How  do  you  account  for 
the  comparative  equality  of  the  two  great  parties  since  1872  ? 

3.  Trace  the  history  of  the  Liberty  and  Free  Soil  parties  to  1856. 
Were  they  both  in  favor  of  abolition  of  slavery  ?  To  what  degree  did 
the  Republican  party  represent  their  antislavery  principles  ? 

4.  Make  a  study  of  the  platforms  of  the  Labor  party  for  1872  and 
of  the  People's  party  for  1892.  What  doctrines  announced  by  the 
former  are  now  accepted  by  our  governments  ?  What  were  the  most 
striking  propositions  of  the  latter  ? 

5.  Take  some  interesting  campaign,  as  1844,  i860,  1876,  1884,  or 
1896,  and  examine  the  proceedings  of  the  nominating  conventions, 
the  character  of  the  platforms,  the  conduct  of  the  campaign,  the  de- 
cisive influences  in  the  result,  and  the  states  or  sections  carried  by  the 
respective  candidates. 

i.  What  is  the  greatest  electoral  majority  obtained  by  any  presiden- 
tial candidate  since  1828  ?  the  greatest  popular  plurality  (in  propor- 
tion to  the  size  of  the  whole  vote)  ?  Give  both  electoral  majorities 
and  popular  pluralities  since  1888.  (Johnston,  American  Folitia, 
Appendix;  and  Political  Almanacs.) 

ii.  WTiat  is  the  present  composition  of  the  United  States  Senate 
and  House  ?  Of  your  own  state  legislature  ?  What  Congresses  since 
the  Civil  War  have  been  overwhelmingly  Republican  or  Democratic  ? 
How  has  your  own  state  voted  in  recent  elections  ?  Why  does  the 
state  favor  the  party  that  it  does  ?  Give  the  political  faith  of  your 
representatives  in  all  governments,  from  the  highest  to  the  lowest. 


Organization  £Uid  Work  (§§  541-549) 

1.  Should  a  party  be  chiefly  concerned  with  serving  public  opinion 
or  leading  and  educating  it  ?  Why  is  a  complete  and  permanent 
organization  so  necessary  to  a  party  ?  Are  independent  movements 
failures  because  they  may  be  temporary  ? 

2.  Can  a  party  do  its  work  without  a  class  of  professional  politi- 
cians ?  Is  there  any  good  reason  why  the  benefits  of  success  should 
not  go  to  the  men  who  bear  the  brunt  of  the  struggle  ?  What  is  the 
best  method  of  obtaining  both  a  powerful  organization  and  the  best 
candidates  for  office,  i.e.  of  protecting  both  the  public  and  the 
party  ? 


The  Political  Party  455 

3.  Would  it  not  be  better  in  the  end  for  the  people  to  have  nomi- 
nations made  directly  by  the  machine  than  in  conventions  controlled 
by  the  machine  ?    Give  your  reasons  in  full. 

i.  Give  the  names  and,  when  possible,  some  account  of  the  follow- 
ing for  Republican  and  Democratic  parties  :  chairman  of  the  national 
committee;  of  the  national  executive  committee;  member  from  your 
state  on  the  national  committee;  member  from  your  county  on  state 
committee ;  the  chief  party  leaders,  if  any,  in  your  county  and  city. 

ii.  What  conventions  were  held  in  the  state  and  localities  last  year  ? 
Ascertain  the  dates  on  which  each  was  held  and  the  approximate  size 
of  each. 

iii.  What  rule  for  party  allegiance  prevails  in  your  own  precinct  ? 
Are  the  caucuses  and  primaries  well  attended  ? 


Reform  and  Control  (§§  550-553) 

a.  On  reform  of  the  primary,  consult  Field,  D.  D.,  in  Forum,  XIV 
(1892),  189  et  seq. ;  Pavey,  F.  D.,  in  Forum,  XXV  (1898),  99-108; 
Easley,  in  Review  of  Reviews,  XVI  (1897),  322-324;  and  Hotchkiss, 
in  Review  of  Reviews,  XVII  (1898),  583-589. 

1.  Would  the  primaries  be  so  important  if  we  did  not  have  reformed 
methods  of  voting  and  counting  the  votes  ?  Is  there  any  possibility 
that  a  reform  of  the  primary  may  necessitate  a  reform  of  what  pre- 
cedes the  primary  ?  Will  a  reformed  primary  make  popular  interest 
in  party  affairs  more  or  less  necessary  if  good  results  are  to  be  obtained? 

2.  WTiy  is  it  more  difficult  to  prescribe  rules  for  party  members  than 
to  determine  who  are  voters  ?  Should  a  rule  for  membership  in  a  party 
ever  take  into  account  a  voter's  position  in  local  elections  ? 


Guarantees 
of  liberty  in 
the  past  and 
the  present. 


CHAPTER   XXIV 

LEGAL  AND  CONSTITUTIONAL  RIGHTS 
General  References 

Bryce,  American  Commonwealth,  306-311. 

Burgess,  Political  Science  and  Comparative  Constitutional  Law,  I, 
184-252.  Immunities  against  the  central  and  state  governments 
guaranteed  by  national  Constitution. 

Cooley,  Constitutional  Limitations,  chaps.  IX-XIII.  Immunities  of 
citizens  of  the  states. 

Cooley,  Principles  of  Constitutional  Law,  214-357.  Rights  enjoyed 
under  the  United  States  government  especially. 

Walker,  American  Law,  Part  VI. 

Parsons,  Political,  Personal,  and  Property  Rights  of  Citizens  of  the 
United  States. 

Dole,  Talks  on  Law.  A  popular  account,  giving  methods  of  protect- 
ing rights. 

State  constitutions,  bills  of  rights. 

554.  The  Bills  of  Rights  in  History  and  Law.  —  If  there 
is  one  thing  more  than  any  other  in  which  English-speak- 
ing people  have  taken  the  greatest  pride,  it  is  the  individual 
liberty  which  they  have  enjoyed  under  their  various  gov- 
ernments. There  has  always  existed  a  hatred  of  arbitrary 
control  more  marked  than  among  other  races,  although  the 
development  of  real  liberty  did  not  reach  a  high  plane  till 
comparatively  modern  times.  This  dislike  for  undue  gov- 
ernment restraint  has  nowhere  and  at  no  time  been  given 
freer  expression  than  during  the  early  part  of  the  great 
revolution  in  the  American  colonies  (chapter  IV).  The 
change  from  imperial  to  American  rule  could  not  remove 
from  the  minds  of  the  people  a  dread  of  interference  by 
the  government;  and  hence  led  the  organizers  of  the  new 

456 


Legal  and  Constitutional  Rights  457 

state  constitutions  to  insert  in  those  documents  bills  of 
rights  reiterating  the  favorite  political  principles  of  the  day 
and  repeating  some  of  the  time-honored  provisions  of  the 
Petition  of  Rights  (1628)  and  the  Bill  of  Rights  (1691, 
§  48).  How  greatly  the  people  felt  the  need  of  constitu- 
tional restriction  upon  their  representatives  is  seen  in  the 
pronounced  opposition  to  the  adoption  of  the  present 
Constitution  of  the  United  States  without  a  bill  of  rights 
(§  120).  These  guarantees  of  liberty,  instead  of  growing 
fewer,  as  we  might  imagine,  have  increased  in  number,  in 
explicitness,  and  in  value.  Many  of  them  are  unneces- 
sary now  as  then,  because  public  sentiment  is  a  unit  upon 
them,  and  public  sentiment  is,  in  many  ways,  a  better  safe- 
guard than  a  constitution;  but  it  must  be  taken  into  con- 
sideration that  when  a  court  decides  that  a  particular  act 
violates  an  individual  right,  it  can  protect  the  right  only 
because  the  act  violates,  at  the  same  time,  the  law,  statu- 
tory or  constitutional,  which  guarantees  that  right.  So  pub- 
lic sentiment  could  not  supplant  the  constitution  as  a 
protector  of  the  individual;  it  can  only  supplement  it. 

555.   Classification  of  Civil  Rights.  —  We  may  roughly   Immunities 
classify  civil  rights  according  to  the  source  of   possible  ^|^'on\and 
restraint  from  which  protection  is  afforded,  as  I,  rights  state  govem- 
against  the  government  or  immunities  from  governmental  ™«°*s. 
action;  and    II,  rights  against    individuals.     Under    the 
first  head  we  have  (i)  immunities  against  the  national  gov- 
ernment, all  of  which  are  contained  in  the  United  States 
Constitution  or  statutes;   and  (2)  immunities  against  the 
state  and  local  governments,  which  are  guaranteed  either 
by  (a)  the  United  States  Constitution  or  {b)  the  constitu- 
tions of  the  states.     Statutes  may  still  further  extend  the 
field  of  this  form  of  individual  liberty;  while  the  practical 
value  of  the  constitutional  provisions  depend,  to  a  large 
extent,  upon  the  interpretation  which  the  courts  give  them. 

The  rights  against  individuals  are,  in  fact,  guarantees.    Rights 
made  by  the  constitutions  or  the  governments,  that  certain  ^ff'"^*  '"'^'" 
rights  shall  be  respected  by  others.    They  are  of  two  kinds : 


458 


The  American  Federal  State 


Apply  al- 
most exclu- 
sively to 
national 
government. 


Provisions 
applying  to 
both  central 
and  state 
governments. 

Cooley, 
Const' I  Law, 

294-301, 
last  ed. 


(i)  personal  rights  and  (2)  property  rights;  and  the  guar- 
antees made  in  state  statutes  are  usually  in  the  form  either 
of  methods  of  procedure  or  of  penalties  for  personal  injury 
(not  considered  in  the  light  of  a  crime),  and  of  payments 
for  damages  done. 

It  will  be  impossible  in  a  single  chapter  to  treat  more  than  the  con- 
stitutional rights,  with  slight  reference  to  those  which  are  protected  in 
criminal  and  in  private  law. 

556.  General  Rights  in  the  United  States  Constitution.  — 

As  indicated  in  the  last  section,  the  provisions  of  the 
United  States  Constitution  which  guard  individual  rights 
afford  protection  either  from  the  United  States  govern- 
ment, the  state  government,  or  both;  but  it  must  never  be 
forgotten  that  they  apply  exclusively  to  the  government  of 
the  nation  unless  otherwise  stated.  In  other  words,  prac- 
tically the  whole  national  "bill  of  rights  "  has  nothing  what- 
ever to  do  with  the  state  governments,  which,  so  far  as  the 
United  States  Constitution  is  concerned,  may  abridge  lib- 
erty of  the  press,  freedom  of  speech,  or  religious  freedom, 
and  deny  right  of  trial  by  jury.  Since  the  national  gov- 
ernment is  one  of  enumerated  powers  and,  therefore,  can 
do  only  that  which  has  been  granted  to  it;  and  since  prac- 
tically the  whole  domain  of  private  and  criminal  law  belongs 
to  the  states,  there  was,  and  now  is,  much  less  need  of  pro- 
tecting the  individual  from  the  central  government  than 
from  the  state  and  local  governments.  But  so  far  as  the 
United  States  does  deal  with  individuals,  the  need  is  far 
greater,  because  the  national  government  is  less  easily 
subject  to  popular  control. 

557.  Immunities  from  all  Government.  —  Certain  per- 
sonal rights  are  protected  by  the  national  Constitution  from 
both  national  and  state  governments.  Neither  Congress 
nor  the  legislatures  are  allowed  to  pass  any  ex  post  facto  law, 
i.e.  to  make  an  act  criminal  which  was  not  a  criminal  act 
at  the  time  it  was  performed,  or  to  increase  the  penalty  for 
a  crime  committed  before  the  law  which  made  the  penalty 


Legal  and  Constitutional  Rights  459 

heavier  had  been  passed.  Neither  government  shall  pass 
any  bill  of  attainder,  which  deprives  an  individual  of  life 
and  his  relatives  of  property  by  act  of  a  legislature.  Neither 
has  the  right  to  establish  slavery  or  any  form  of  servitude 
"  except  as  a  punishment  for  crime  whereof  the  party  shall 
have  been  duly  convicted."  Nor  can  either  government 
deny  to  any  one  the  privilege  of  the  writ  of  habeas  corpus, 
unless  the  denial  is  justified  by  public  danger.  To  us  these 
statements  are  platitudes,  but  they  are  all,  especially  the 
last,  aimed  to  prevent  the  recurrence  of  abuses  that  darken 
the  pages  of  English  and,  to  some  extent,  American  history. 

558.  Freedom  of  Speech  and  Religion  under  United  States  Regulations 
Government.  —  The   first  amendment  to  the  Constitution  regarding 
denies  to  Congress  the  right  of  either  establishing  any  re- 
ligion or  prohibiting  the  free  exercise  of  a  religion  by  any 
individual.    This  does  not  prevent  Congress,  however,  from 

making  illegal  such  practices  as  polygamy  within  the  terri- 
tories, even  when  that  is  one  of  the  fundamental  doctrines 
of  a  religious  sect. 

The  same  amendment  prevents  Congress  from  abridging  Speech,  the 
freedom  of  speech  and  of  the  press,  or  denying  the  right  P"^^^^-  p^^*" 

,  ,  1         ■  •         1  .-11,1  tions,  and 

to  assemble  and  petition  the  government.    All  of  these  pro-  assembling. 

visions  are  less  important  than  they  seem,  because  it  is   ^^  .... 

held  that  within  the  states  Congress  has  no  power  whatever  278-281, 

to  deal  with  these  subjects;  and  some  go  so  far  as  to  assert  =83-293. 

that  when  an  official  of  the  United  States  is  defamed  by  a 

citizen  of  a  state,  he  can  have  recourse  only  to  the  legal 

remedy  of  that  state.     For  that  reason  the  sedition  law  of 

1798  (§  153),  which  in  substance  created  a  national  libel 

law,  has  been  thought  by  many  to  be  unconstitutional. 

559.  Personal  Security  under  the  United  States  Govern-  Protection 
ment.  — The  abuse  of  the  privilege  claimed  by  the  British   ^'"°'"  soldiers 

*  °  and  arbitrary 

government  in  colonial  times  to  quarter  its  soldiers  in  pri-  arrests, 
vate  homes  without  pay,  and  to  issue  general  warrants  for   rQQ\^y  aid 
search  of  houses  and  arrest  of  persons,  led  to  the  adoption  217-222. 
of  the  third  and  fourth  amendments.     In  time  of  peace  no 
soldier  of  the  United  States  shall  be  permitted  to  occupy  a 


460 


The  American  Federal  State 


Jury  trials. 

Cooley,  ibid., 

246-250, 

301-310. 


Amendment 
V. 


Regarding 

contract 

laws. 

Cooley, 
Const' I  Law, 
3"-3a7 


house  if  the  owner  is  unwilling;  and,  during  wars,  he  can 
do  it  only  in  accordance  with  regulations  laid  down  by 
Congress  for  the  whole  country,  though  it  must  be  admitted 
that  an  aggrieved  person  finds  it  difficult  to  obtain  any 
redress  under  the  latter  conditions.  Neither  can  a  United 
States  officer,  by  means  of  a  general  warrant,  i.e.  one  which 
does  not  name  the  person  accused  or  the  goods  to  be  seized, 
ransack  the  house  of  suspected  persons  till  incriminating 
evidence  is  found,  and,  upon  that  evidence,  arrest  the 
person. 

560.  Immunities  against  United  States  Government  in 
Other  Respects.  —  Although  so  few  crimes  come  under  the 
jurisdiction  of  United  States  courts,  there  are  elaborate 
provisions  in  the  fifth,  sixth,  and  eighth  amendments  which 
guarantee  right  of  trial  by  jury  and  other  rights,  which 
give  the  accused  every  possible  advantage.  As  the  state 
bills  of  rights  are  quite  similar,  and  vastly  more  important 
because  used  so  much  more,  these  rights  will  be  enumerated 
later.  Right  of  trial  by  jury  in  suits  at  common  law  in- 
volving at  least  1^20  is  assured  by  the  national  Consti- 
tution, while  the  people  are  permitted  to  keep  and  bear 
arms  at  all  times  in  order  that  a  military  despotism  may  not 
be  possible.  In  the  punishment  of  treason  the  government 
is  restricted  to  the  definition  of  that  crime  given  in  the 
Constitution;  guilt  must  be  proved  by  testimony  of  at  least 
two  witnesses  to  the  same  act  or  confession  in  open  court, 
and  no  conviction  shall  affect  any  one  but  the  guilty  party. 

In  the  fifth  amendment,  security  for  persons  and  property 
is  assured  in  the  words,  "  Nor  shall  any  person  ...  be 
deprived  of  life,  liberty,  and  property  without  due  process 
of  law,  nor  shall  private  property  be  taken  for  public  use 
without  just  compensation." 

561.  Protection  by  the  United  States  Constitution  against 
the  State  Governments.  — The  rights  of  individuals  against 
the  state  governments  are  protected  by  two  very  useful  pro- 
visions of  the  United  States  Constitution.  One  of  these  is 
in  the  Constitution  itself,  the  other  in  the  fourteenth  amend- 


Legal  and  Constitutional  Rights  461 

ment.  The  first  says  that  no  state  shall  pass  any  law  im- 
pairing the  obligation  of  contracts,  and  has  been  the  source 
of  almost  unlimited  dispute,  due  especially  to  the  meaning 
of  the  word  contract.  It  is  now  understood  that  any  law 
which  alters  in  any  way  a  contract  between  private  parties, 
or  changes  in  an  unreasonable  way  the  means  of  enforcing 
it,  comes  under  this  prohibition  upon  the  states.  Likewise 
a  contract,  as  e.g.  a  charter,  made  between  the  state  and 
individuals  or  corporations,  cannot  be  altered  by  the  state 
government  unless  the  state  constitution  expressly  reserves 
to  the  legislature  the  privilege  of  changing  it,  or  the  con- 
tract itself  provides  for  amendment  or  cancellation  by  the 
state. 

In  the  same  section  of  the  Constitution  that  contains  the  Payment  of 
clause  considered  above,  the  states  are  denied  the  right  to  ^^^!f '"  ^°'^ 

°  or  silver. 

"  make  anything  but  gold  and  silver  coin  a  tender  in  pay- 
ment of  debt,"  thus  protecting  creditors  on  long  time 
payments  and  all  citizens  in  regular  business. 

562.  Protection  by  ''Due  Process  of  Law." — The  first  What  it  in- 
section  of  the  fourteenth  amendment  asserts  that  no  state  *^^"*^^s- 
shall  "deprive  any  person  of  life,  liberty,  or  property  with-   Qoo\ty,ibid., 
out  due  process  of  law,  nor  deny  to  any  person  within  its  '^^o-aas- 
jurisdiction  the  equal  protection  of  the  law."     If  a  state 

shall  attempt  to  do  any  of  these  things,  the  party  aggrieved 
may  obtain  justice  by  taking  his  case  before  the  United 
States  courts.  But,  of  course,  no  person  is  guaranteed  that 
his  state  government  will  adopt  those  laws  and  that  method 
of  procedure  that  will  give  him  the  best  opportunity  to  pre- 
serve his  life  and  liberty  and  retain  his  property.  In  reality 
this  is  intended  to  serve  only  as  a  check  upon  arbitrary 
action  by  state  governments.  If  the  technical  forms  of  law 
are  observed,  no  person  has  any  legal  redress. 

563.  The  State  Bills  of  Rights.  —  From  a  practical  stand-  The  older 

point,  the  bills  or  declarations  of  rights  in  the  state  consti-  ^^^  *^?.„    - 
^  °  newer  bills  of 

tutions  are  much  more  valuable  in  maintaining  individual  rights, 
liberty  than  similar  articles   in   the  Constitution   of   the 
nation.     There  is  quite  a  difference  between  the  older  and 


462  The  American  Federal  State 

the  newer  bills,  the  latter  being  far  more  definite;  but, 
nevertheless,  a  general  similarity  prevails.  With  scarcely 
an  exception,  they  open  with  a  repetition  of  certain  state- 
ments from  the  second  paragraph  of  the  Declaration  of 
Independence,  and  many  of  them  close  with  such  a  gen- 
erality as  "a  frequent  recurrence  to  the  fundamental  princi- 
ples of  civil  government  is  absolutely  necessary  to  preserve 
the  blessings  of  liberty."  Many  include  a  few  maxims  or 
principles  of  government,  but,  on  the  whole,  they  are 
devoted  to  an  enumeration  of  specific  rights  which  the 
older  ones  say  ought  to  be  preserved  and  the  newer  ones 
declare  shall  be  inviolate.  Most  of  them  repeat  the  pro- 
visions of  the  national  Constitution  which  restrict  the 
powers  of  the  state,  and  some  of  them  are  little  more  than 
a  copy  of  the  national  bill  of  rights. 

Michigan  is  the  only  one  of  the  states  that  has  no  separate  bill  of 
rights.  A  good  idea  of  the  difference  between  the  older  and  newer 
ones  can  be  obtained  by  comparing  that  of  New  Hampshire  or  Ver- 
mont, or  even  of  Massachusetts,  with  that  of  any  state  west  of  the 
Mississippi.  The  new  constitution  of  New  York  gives  an  interesting 
summary  of  "  rights." 

Full  religious       SH   Religious    Liberty.  —  Nothing    is    given    greater 
rights.  prominence  in  the  state  bills  of  rights  than   the   state- 

Cooiey,  ments  referring  to  religious  liberty.     No  state  religion  is 

Const  I  Law,  ^o  be  established  anywhere,  nor  is  any  person  to  be  com- 
pelled to  pay  for  the  support  of  a  particular  church,  to  be 
denied  free  expression  of  religious  views,  to  be  disquali- 
fied from  holding  office  or  exercising  legal  rights  because 
of  his  opinions.  But  some  add  that  practices  under  the 
cloak  of  religion  that  are  detrimental  to  public  morals  shall 
be  punished  as  crimes. 
The  law  of  565.  Freedom  of  Speech  and  of  the  Press.  —  The  states 
have  adopted  many  of  the  rules  and  practices  of  the  com- 
mon law  —  the  original  law  of  England  —  this  having  been 
the  chief  source  of  our  rights  and  remedies;  but  some  parts 
of  this  law  have  been  modified  in  order  to  increase  indi- 


libel. 


Legal  and  Constitutional  Rights  463 

vidual  liberty  and  gain  the  best  results  from  government  by 
the  people.  The  common  law  did  not  give  an  individual 
the  right  to  criticise  candidates  and  officials  as  we  do  now, 
neither  did  it  permit  one  person  to  say  of  another  what  we 
may  legally  do  to-day.  One  of  the  maxims  relating  to  the 
freedom  of  speech  and  of  the  press  shows  this;  for  as  an 
eminent  English  chief  justice,  Mansfield,  said,  "The 
greater  the  truth,  the  greater  the  libel."  Our  own  custom 
is  exactly  the  reverse,  for  over  half  of  our  constitutions 
expressly  state  that  in  a  suit  for  libel  the  truth  may  be  given 
as  evidence,  and  all  provide  for  freedom  of  speech  and  the 
press,  asserting,  however,  that  all  persons  shall  be  liable  for 
abuse  of  the  liberty. 

566.  Protection  of  Property  from  the  Government.  —  Through  just 
There  are  two  ways  besides  robbery  in  which  government  *^**'°"- 
may  take  the  property  of  its  citizens  and  subjects  without 
their  consent.  One  through  taxation,  the  other  by  exercis- 
ing the  right  of  eminent  domain.  The  state  constitutions 
almost  invariably  go  farther  than  that  of  the  United  States 
in  protecting  individuals  from  arbitrary  action;  e.g.  when 
a  constitution  says  that  all  taxation  shall  be  just  and  uni- 
form, and  that  the  general  property  tax  shall  be  levied  in 
proportion  to  value,  while  double  taxation  is  forbidden, 
property  owners  who  believe  themselves  unfairly  treated 
can  have  recourse  to  the  courts  with  every  probability  of 
receiving  justice. 

The  right  of  eminent  domain  may  be  exercised  by  the  Eminent 
state  either  for  itself,  for  one  of  its  public  corporations,  or  "°'"^'"- 
for  private  corporations,  or  private  parties.     The  constitu-  Cooiey,  ibid., 
tions  usually  provide  that  the  property  shall  be  taken  only 
for  a  public  use,  and  arrange  that  in  case  of  disagreement 
between  the  property  owner  and  those  needing  the  property 
the  courts  shall  leave  the  amount  of  compensation  to  a  jury 
or  other  tribunal,   whose  decision  is  final.      Individuals 
are  therefore  fully  protected,  though  their  claim  to  a  par- 
ticular piece  of  property  is  subordinate  to  that  of  the 
public. 


464 


The  American  Federal  State 


Holding 
persons  for 
triaL 


Trial  of 
accused. 

Cf.  Cooley, 
»^«<^., 301-310. 


Two  forms 
of  codes. 


567.  Rights  of  a  Person  accused  of  Crime.  —  Both  the 

United  States  and  the  state  constitutions  are  very  careful 
in  guarding  the  rights  of  any  one  held  for  trial.  Persons 
suspected  of  murder  can  be  tried  only  upon  a  presentment 
or  indictment  of  a  grand  jury,  i.e.  only  after  an  examination 
before  impartial  fellow-citizens  followed  by  a  written  state- 
ment that  the  evidence  justifies  their  being  held.  In  most 
of  the  states,  persons  may  be  tried  for  lesser  crimes  upon 
a  charge  called  information,  made  by  the  public  prose- 
cutor; but  even  then  they  may  have  the  benefit  of  a  pre- 
liminary examination  before  a  grand  jury  or  a  justice  of  a 
minor  court. 

The  accused  is  everywhere  guaranteed  a  speedy  trial, 
and,  except  for  crimes  punishable  by  death,  has  the  oppor- 
tunity of  offering  bail,  which  is  forfeited  if  he  fails  to 
appear  on  the  day  appointed.  When  the  trial  begins,  he 
has  counsel  furnished  by  the  court  if  unable  to  pay  for  an 
attorney  himself.  Whatever  witnesses  he  or  his  la^vyer 
desire  shall  be  called,  and  no  witness  can  testify  against 
him  except  in  open  court  in  his  presence,  an  exception 
being  made  when  death-bed  testimony  is  introduced.  A 
jury  is  always  used  to  decide  whether  the  facts  show  that 
the  person  is  guilty,  a  unanimous  verdict  being  necessary 
to  convict.  The  defendant  cannot  be  compelled  to  testify 
against  himself,  and  if  acquitted  cannot  be  retried  under 
ordinary  circumstances.  If  the  jury  is  divided  in  its 
opinion,  however,  there  has  legally  been  no  trial  whatever. 
The  whole  system  presupposes  a  person  innocent  till  proved 
otherwise,  while  everything  about  it  favors  the  accused. 

568.  Protection  of  Rights  under  Penal  Codes.  —  The 
criminal  laws  made  by  the  state  legislatures  serve  at  the 
same  time  to  protect  the  general  public  and  any  individual 
who  is  injured,  and  yet  render  justice  to  those  tried  for 
crime.  We  may  separate  the  laws  into  two  parts, —  the  penal 
code  proper  and  the  code  of  criminal  procedure.  The 
former  deals  with  the  definition  of  crimes,  the  latter  with 
the  methods  used  by  the  criminal  courts. 


Legal  and  Constitutional  Rights  465 

Most  of  the  crimes  are  either  against  property  or  against  Definition 
the  person,  but  the  interest  of  the  community  at  large  and  nature  of 
to  prevent  the  spread  of  crime  is  treated  as  more  im- 
portant than  that  of  the  injured  party.  As  no  one  can 
be  punished  for  crimes  not  on  the  statute  books,  every 
effort  is  made  to  fully  cover  the  multitude  of  offences 
which  may  be  committed,  and  provide  suitable  penalties 
for  each. 

569.   Protection  of  Rights  by  Suits  at  Law  and  in  Equity.    Distinction 
—  Individual  rights  are,  however,  protected  more  by  the  '^l^*)^^^^ 
"civil "  than  by  the  criminal  laws.    When  a  personal  griev-  criminal 
ance  against  some  one  else  amounts  to  a  crime,  the  state  ^^^^' 
takes  charge  of  the  prosecution,  the  complaining  party  being 
merely  a  witness,  who  obtains  no  pecuniary  satisfaction  if 
the  defendant  is  found  guilty;  but  in  civil  suits,  the  person 
aggrieved  brings  suit  directly  against  the  one  who  has 
injured  his  person  or  his  property,  and,  in  case  his  con- 
tention is  sustained  by  the  court,  he  obtains  judgment  for 
such  an  amount  as  the  court  deems  reasonable. 

Of  "  civil "  suits  there  are  two  distinct  kinds,  commonly  known  as    Distinction 
suits  at  law  and  suits  in  equity.     They  not  only  relate  to  different  sub-    between  suits 
jects,  but  employ  entirely  different  methods.     In  general,  the  lawsuits   *  ^w  an 
deal  with  the  ordinary  affairs  of  life,  including  land  titles,  contract    equity 
rights,  debt  obligations,  and  many  others.    The  methods  of  procedure 
are  rather  complicated,  and,  while  the  number  of  rights  recognized  and 
guaranteed  by  this  branch  of  the  law  are  numerous,  it  would  often  be 
impossible  to  obtain  justice  through  it  alone,  because  it  is  too  rigid 
and  technical.    These  defects  "equity"  is  intended  to  remedy.    The 
procedure  in  equity  cases  is  comparatively  simple,  and  the  methods  of 
equity  courts  enable  them  to  afford  deeper,  quicker,  and  more  sub- 
stantial relief  than  would  be  possible  under  the  processes  of  the  "law" 
courts.     Equity,  however,  covers  relatively  few  cases,  and  those  are 
generally  of  a  complex  nature,  such  as  questions  of  trust,  liens,  frauds, 
etc.    The  chief  advantage  of  equity  from  the  standpoint  of  rights  is 
that,  as  Dole  says,  "  equity  administers  the  ounce  of  prevention  ;  law, 
the  pound  of  cure,"  e.g.  by  means  of  injunction  an  equity  court  will 
prevent  your  neighbor  from  erecting  a  nuisance  at  your  dooryard  or 
building  a  railroad  across  your  lot,  whereas  a  court  of  law  can  only 
give  you  satisfaction  afterward  for  injury  done. 
2K 


466 


The  American  Federal  State 


Protection  of 
weaker 
classes  by 
law. 


Homestead 

exemption 

laws. 

Spofford,  in 
Lalor.  II, 
462-465. 

Cleveland, 

Democracy, 

380-385. 


Historical 
importance 
of jury 
system. 


Right  of  trial 
to-day  in 
criminal 
cases; 

in  lawsuits. 


570.  Homestead  Exemption  Laws.  —  Many  rights  are  now 
recognized  by  the  constitutions  and  the  statutes  which  for- 
merly had  no  existence.  For  example,  married  women, 
who  in  times  past  had  no  separate  property  rights,  are  now 
almost  everywhere  permitted  to  own  and  manage  separate 
property,  and  have  claims  upon  that  of  their  husbands; 
laborers  are  given  preference  over  other  creditors  of  their 
employers;  and  debtors  are  permitted  to  retain  their 
homesteads  in  case  of  insolvency. 

At  the  present  writing,  homestead  exemption  laws  are 
to  be  found  in  all  but  four  states,  all  of  which  belong  to 
the  original  thirteen.  Of  the  others,  the  majority  place  the 
maximum  value  of  property  exempted  at  $1000  or  $2000, 
though  several  go  as  high  as  $5000.  Many  of  these  also 
allow  debtors  to  keep  personal  property,  either  in  addition 
to  the  homestead  or  without  the  latter.  Both  the  letter  and 
the  spirit  of  the  law  of  to-day  favor  the  rights  of  those  who 
would  naturally  be  least  able  to  protect  themselves. 

571.  Extent  to  which  the  Jury  System  is  used.  — The 
credit  for  maintaining  so  satisfactorily  the  rights  of  indi- 
viduals before  the  law  in  England  and  America  belongs, 
to  a  very  great  extent,  to  the  jury  system.  When  popular 
participation  in  the  work  of  government  was  much  less 
common  than  at  present,  when  judges  could  not  possibly 
be  influenced  directly  by  the  wishes  of  the  people,  and 
when  the  principal  characteristic  of  the  criminal  laws  was 
their  harshness,  the  right  of  trial  by  jury  was  almost  the  sole 
source  of  justice  for  the  common  people.  With  the  changed 
conditions  of  the  present,  it  is  no  longer  the  one  thing 
indispensable  to  the  oppressed,  but  its  extensive  use  bears 
witness  that  its  value  is  not  purely  historic. 

In  criminal  cases  where  the  crime  amounts  to  a  felony, 
the  guilt  of  the  accused  is  always  determined  by  jury;  but 
for  many  kinds  of  misdemeanors  the  police  justice  renders 
the  decision,  unless  the  defendant  demands  a  jury  trial. 

In  lawsuits  there  is  scarcely  a  state  that  does  not  permit 
the  jury  trial  to  be  waived  with  the  consent  of  both  parties; 


Legal  and  Constitutional  Rights  467 

but  some  of  the  newer  ones  have  gone  farther  and  do  not 
require  a  unanimous  decision. 

Nevada  provided  in  her  constitution  (1864)  that  in  civil  suits  three-    States  that 

fourths  of  the  jury  should  be  sufficient  to  decide.     California,  Wash-    have  abo!- 

ington,  Idaho,  and  Utah  have  followed  her  example ;   Minnesota  has    '^"^'*  unani- 

.        ,       ,     .  ,  ,       .  ,  ,         ,         .       ,    ,      .  mous  ver- 

given  her  legislature  the  right  to  pass  a  law  that  six  of  the  jury  are    ^j^^g 

enough;  while  Montana  is  the  most  lenient  of  all,  and  allows  two- 
thirds  of  the  jury  to  decide  civil  suits.  So  far  Idaho  is  the  only  state 
that  has  broken  away  from  the  unanimous  vote  in  criminal  cases  by 
giving  five-sixths  of  the  jury  the  right  to  render  a  decision  in  mis- 
demeanors. 

572.  Advantages  of  Jury  Trial.  —  Juries  are  an  advantage  To  the  jury- 
both  to  the  accused  and  the  jurymen.     To  the  former,   ^l"^^^^  '''^ 
because  the  facts  connected  with  his  guilt  or  innocence  are 

viewed  from  the  standpoint  of  common  sense  rather  than  ^„  ^^w,  78- 
o£  law.  The  jury  disregards  technicalities,  but  places  the  83. 
emphasis  upon  the  right  or  wrong  involved.  It  takes  into 
account  the  circumstances,  the  motive,  and  the  conse- 
quences, so  that  if  it  errs  at  all,  it  errs  on  the  side  of 
leniency.  If  the  bench,  and  not  the  jury,  were  to  decide 
the  facts  as  well  as  the  law,  the  letter  of  the  law  would  be 
less  violated  with  impunity;  but  its  spirit  would  grow  frail 
through  disuse :  the  law  would  lose  in  force  what  it  gained 
in  definiteness.  As  a  legal  system  it  would  be  more  per- 
fect, but  as  a  medium  of  justice  it  would  be  a  failure, 
becoming  more  and  more  undemocratic. 

To  the  citizen  the  jury  gives  opportunity  for  civic  edu- 
cation. It  brings  him  into  touch  with  the  work  of  adminis- 
tering the  law  and  makes  him  part  of  it,  and  in  so  doing 
gives  him  clearer  conceptions  of  legal  rights  and  methods, 
and  fits  him  to  exercise  his  duties  as  a  citizen  with  greater 
knowledge  and  to  better  purpose. 

573.  Disadvantages  of  Jury  Trial.  — The  main  question  is  Abuses  and 
whether  these  advantages  are  worth  what  they  cost,  whether  d^^^cts. 
they  apply  to  all  forms  of  jury  trial,  and  whether  they  0016,73-77. 
are  not,  after  all,  but  partially  secured  on  account  of  the 
numerous  exemptions  from  jury  duty.     Civilization  to-day 


468  The  American  Federal  State 

is  complex,  and  on  every  hand  demands  division  of  labor 
and  concentration  of  effort.  Formerly  men  had  many  lines 
of  work,  and  one  additional  did  not  matter;  but  now  to 
break  in  upon  a  prescribed  routine  entails  serious  loss  not 
only  at  the  time,  but  in  all  subsequent  efforts.  It  has 
therefore  been  considered  necessary  to  exempt  from  jury 
service  all  who  are  in  the  professions  or  upon  whom  respon- 
sibility is  centred.  This  removes  at  once  the  ablest  classes 
from  the  jury  lists,  and  has  given  some  ground  for  the 
charge  that  only  the  ignorant  and  thoughtfree  are  wanted. 
The  jury,  consequently,  does  not  represent  the  community, 
and  the  civic  education  is  as  often  as  not  wasted.  More- 
over, the  juries  are  less  fitted  to  understand  and  judge  ques- 
tions involving  knotty  problems  of  law,  and,  on  the  whole, 
do  not  give  satisfaction  in  civil  suits.  They  are  especially 
desired  by  the  lawyer  who  has  a  weak  case,  for  he  can  easily 
deceive  them;  and,  as  they  cannot  take  notes,  an  eloquent 
appeal  at  the  last  blinds  them  to  all  previous  evidence.  In 
criminal  cases  a  jury  drawn  from  the  lower  half  of  society 
often  fails  to  protect  that  society  out  of  sympathy  for  the 
accused.  Summing  up  we  may  say:  the  jury  is  expensive, 
under  present  conditions  it  is  necessarily  unrepresentative; 
in  civil  suits,  through  its  ignorance,  and  in  criminal  cases, 
through  its  prejudice,  it  often  defeats  the  ends  of  justice. 


QUESTIONS  AND   REFERENCES 

Bights  guaranteed  by  the  United  States  Constitution 

(§§  554-562) 

1.  Trace  the  history  of  the  writ  of  habeas  corpus  (cf.  Medley,  Eng- 
lish Constitutional  History).  Has  the  denial  of  the  privileges  of  the 
writ  in  this  country  ever  worked  hardships  ? 

2.  Ought  all  civil  rights  to  be  national  instead  of  part  national  and 
part  state  ?  Give  arguments  for  and  against  the  nationalization  of 
civil  rights  (cf.  §  249). 

3.  Is  there  any  connection  whatever  between  personal  liberty  and 
guarantees  of  rights  by  the  states,  i.e.  would  personal  liberty  be  endan- 


Legal  and  Constitutional  Rights  469 

gered  by  nationalization  of  civil  rights  ?    Why  have  most  of  the  people 
of  the  United  States  in  the  past  held  that  it  would  ? 

i.  What  provisions  of  the  national  bill  of  rights  are  of  especial 
value  ?  What  ones  belong  almost  solely  to  history  ?  Are  any  a  dis- 
advantage at  present  ?    If  so,  which  ? 


Rights  Tinder  the  State  Constitations  and  La'ws 

(§§  563-570) 

a.  Look  up  the  method  of  procedure  in  criminal  cases,  in  suits  at 
law,  and  in  equity ;  consult  Willoughby,  American  Citizenship,  94- 
109;  Dole's  Talks  on  Law,  chaps.  IV-VIII,  XII;  Andrews,  Ameri- 
can Law,  Parts  III,  IV. 

1 .  Make  a  comparison  of  an  eighteenth-century  bill  of  rights  with 
a  recent  one;  of  your  first  one  with  the  one  of  to-day. 

2.  Is  there  too  much  license  in  speech  and  writing  ?  What  should 
be  the  proper  limit  between  proper  freedom  and  too  little  restraint  ? 
Under  what  circumstances,  if  any,  ought  the  truth  to  be  considered 
libellous  ? 

3.  How  can  private  parties  take  property  for  a  public  use  ?  What 
constitutes  a  public  use  ?  Should  the  courts  or  the  legislature  deter- 
mine what  is,  and  why  ? 

i.  Is  your  bill  of  rights  long  or  short,  general  or  specific  ?  What 
provisions  of  the  United  States  Constitution  are  copied  ?  Are  all  of 
the  national  prohibitions  upon  the  state  repeated  ? 

ii.  Give  the  provisions  regarding  religious  freedom,  freedom  of  speech, 
right  in  trials,  property  rights,  and  any  others  of  importance. 

Hi.  If  possible,  visit  a  courtroom  and  witness  a  trial.  Learn  the  steps 
necessary  to  begin  a  civil  suit.  Notice  the  difference  in  procedure  in 
criminal  cases,  in  suits  at  law,  and  in  suits  in  equity. 


The  Jury  System  (§§  571-573) 

a.  Notice  the  advantages  of  the  jury  system  as  given  by  Lieber, 
Civil  Liberty  and  Self-government,  234-237;  H.  H.  Wilson,  in  Popular 
Science  Monthly,  XXIV  (1883),  676-686;  and  Townsend,  in  Forum, 
XXII  (1896),  107-116. 

b.  Compare  the  above  with  the  accounts  of  E.  A.  Thomas,  in  Forum, 
III  (1887),  102- 1 10;  C.  H.  Stephens,  in  Popular  Science  Monthly, 
XXVI  (1884),  289-298. 


470  The  American  Federal  State 

1.  What  reforms  in  the  present  jury  system  seem  to  be  demanded  ? 
Can  you  suggest  a  suitable  substitute  for  the  jury  ? 

2.  Look  up  the  origin  of  jury  trial.  When  did  it  originate?  Where? 
What  changes  has  it  undergone  ? 

i.  What  is  a  grand  jury  ?  Is  more  than  one  held  in  your  county 
each  year  ?  If  not,  what  does  it  do  ?  If  so,  what  are  the  tasks  of 
each  ? 

ii.  How  are  jurors  selected  for  a  term  of  a  court  ?  How  for  a  par- 
ticular jury  ?  Are  they  paid  ?  If  so,  how  much  ?  Who  are  exempted 
in  your  locality  ? 


CHAPTER  XXV 

TAXATION 
General  References 

Hinsdale,  American  Government,  194-198.     On  national  taxes. 

Bryce,  American  Commonwealth,  356-365.     On  state  finance. 

Shearman,  Natural  Taxation.  Defects  of  present  system,  and  new 
one  proposed. 

Roberts,  Government  Revenue. 

Wells,  Theory  and  Practice  of  Taxation. 

Ely,  Taxation  in  American  States  and  Cities.  Interesting  facts,  fig- 
ures, and  suggestions. 

Plehn,  Public  Hnance,  Part  II,  chaps.  IV-IX.  The  most  satisfactory 
brief  account  of  American  taxes. 

Daniels,  Public  Finance. 

Bastable,  Public  Finance,  Books  III  and  IV.  The  principles  of  taxa- 
tion and  different  kinds  of  taxes,  especially  European, 

Seligman,  Essays  in  Taxation.  Brief  treatment  of  the  general  prop- 
erty and  inheritance  taxes,  with  full  discussion  of  corporation 
taxes  by  a  very  high  authority. 

Adams,  Science  of  Finance,  especially  286-516.  Theoretical  and  prac- 
tical consideration  of  taxes,  particularly  American. 

Cooley,  Taxation.    The  law  of  the  subject. 

Howe,  Internal  Revenue  System  in  the  United  States. 

West,  The  Inheritance  Tax. 

Jones,  Federal  Taxes  and  State  Expenses. 

574.  The  Question  of  Taxation.  —  We  may  not  fully  agree  importance 
with  those  writers  who  hold  unjust  and  arbitrary  taxation 
responsible  for  the  great  revolutions  of  history,  with  their 
resulting  contributions  to  the  progress  of  mankind;  but  the 
present  interest  of  a  subject  so  closely  connected  with  the 
pocket-book  of  practically  every  citizen,  and  its  future 
importance  as  a  possible  means  of  solving  some  of  the 
problems  of  society,  cannot  well  be  questioned. 

47» 


472 


The  American  Federal  State 


It  should  be 
according  to 
ability  to  pay. 

Adams, 
Science  of 
Finance, 
328-333. 


Other  charac- 
teristics. 

Bas  table, 
Public 
Finance, 
382-391- 


575.  Characteristics  of  a  Good  Tax.  —  There  are  certain 
characteristics  that  every  tax  should  possess.  Among  these 
five  are  especially  important,  (i)  It  should  be  according 
to  the  citizen's  ability  to  pay.  It  is  now  generally  felt 
that  ability  should  be  the  test  of  the  amount  paid  in 
taxes,  because  it  is  a  social  duty  for  the  individual  to  con- 
tribute to  the  support  of  the  government  in  proportion  to 
his  means.  But  there  is  still  a  great  deal  of  disagreement 
over  the  best  way  to  determine  ability,  some  favoring  the 
net  income,  others  the  gross  income,  and  a  third  set  the 
value  of  the  property  a  man  owns.  (2)  The  times  and 
methods  of  assessment  and  collection  should  not  be  arbi- 
trary, but  fixed  and  known  to  all.  (3)  The  tax  should  be 
as  little  felt  as  possible.  All  of  the  burden  should  not  be 
placed  upon  a  single  class,  as  in  many  of  the  French  taxes 
just  before  the  great  Revolution.  An  old  but  defective  tax 
is  often  less  felt  than  a  new,  though  much  better  tax. 
Changes  should,  in  consequence,  take  place  only  when  the 
good  to  be  derived  clearly  overbalances  the  difficulty  the 
people  encounter  in  adjusting  themselves  to  the  change. 
(4)  It  should  be  easily  administered.  It  should  not  be  so 
hard  to  assess  the  tax  that  a  premium  is  placed  on  dishon- 
esty. No  tax  can  be  easily  administered  that  does  not  meet 
with  the  support  of  the  people,  or  of  which  the  cost  of  col- 
lection is  great.  (5)  It  should  be  suited  to  the  district  for 
which  it  is  assessed.  The  absurdity  of  allowing  cities  or 
even  states  (commonwealths)  to  levy  customs  duties  or 
internal  revenue  is  clearly  apparent,  while  a  general  land 
tax  would  be  about  as  little  suited  to  the  purpose  of  the 
central  government. 


Tax  systems. 

Bastable, 
256-258. 


576.  Tax  Terms. — By  a  system  of  taxes  we  mean  the  sum  total 
of  all  of  the  taxes  levied  by  any  one  government.  In  most  countries 
there  are  two  tax  systems :  the  national  and  the  local ;  in  this  country 
we  have  three  :  the  national,  the  state,  and  the  local.  Now,  as  a  matter 
of  fact,  no  one  tax  is  likely  to  possess  all  of  the  characteristics  we  have 
just  enumerated.  But  if  no  tax  is  seriously  defective,  and  if  the  system 
as  a  whole  conforms  to  these  characteristics,  the  tax  system  might  be 


Taxation  473 

said  to  be  good.  But  in  order  to  be  satisfactory,  a  tax  system  must  do 
more  than  that.  The  systems  of  the  nation,  the  state,  and  the  locali- 
ties must  not  conflict  or  great'y  overlap,  while  each  system  must  be 
adapted  to  the  peculiar  needs  of  its  government,  as  shown  in  the 
expenditures  of  that  government. 

Taxes  are  either  direct  or  indirect,  but  a  great  deal  of  confusion  has    Direct  and 
been  occasioned  by  the  use  of  these  words  in  different  senses.    The  one    indirect 
most  common  speaks  of  direct  taxes  as  those  which  are  actually  paid    '*^^** 
by  the  person  upon  whom  they  are  assessed,  as  ordinary  land,  house, 
and  "  personal  "  taxes.    Indirect  taxes  are  those  levied  upon  imported 
goods,  and  most  forms  of  internal  revenue  where  the  person  paying 
the  tax  adds  the  amount  of  it  to  the  price  of  the  goods,  and  the  tax  is 
really  paid  by  the  purchaser.     Most  authorities  agree  that  the  expres- 
sion "direct  taxes"  in  the  Constitution  does  not  include  all  of  the 
direct  taxes  just  mentioned. 

When  the  total  amount  to  be  raised  by  a  specific  tax  is  ascertained    Apportioned 
beforehand,  and  the  amounts  for  different  localities  are  accurately  stated,    and  percent- 
the  tax  is  said  to  be  apportioned ;    but  if  the  tax  rate,  and  not  the    ^*  taxes, 
amount,  is  given,  so  that  the  total  revenue  depends  upon  the  value  of 
what  is  assessed,  we  have  &  percentage  or  rated  tax;   e.g.  the  tax  upon 
customs  duties  falls  in  the  second  class  because  the  rate  is  specified, 
and  the  amount  depends  upon  how  much  is  imported. 

Finally,  taxes  may  be  proportional  or  progressive.     If  the  rate  is    Proportional 
the  same  for  the  person  who  pays  a  small  tax  as  it  is  for  the  one  whose    and  progres- 
assessment  is  large,  the  tax  h  proportional ;  but  when  the  rate  increases    *'^^  taxes, 
with  the  assessment,  progressive  taxation  results.     E.g.,  an  income  tax    Bastable, 
that  exempts  all  persons  with  incomes  of  less  than  jjSiooo  a  year,    289-306. 
charges  two  per  cent  on  incomes  between  ^looo  and  ;?5000,  three    ^^jams 
per  cent  on  those  between  ^5000  and  $10,000,  and  so  on  to  ten  per   352. 
cent  on  all   annual   incomes   of  over  ;jS  1,000,000  is  progressive.     So 
also  an  inheritance  tax,  where  the  rate  varies  both  with  the  amount 
of  any  single   bequest  and  the   relationship  of  the  legatee,  is  pro- 
gressive. 

577.  The  Cost  of  Government.  —  Before  taking  up  the  Expendi- 
different  tax  systems  of  our  country,  let  us  consider  for  a  *"'"^s  of 
moment  the  cost  of  all  our  governments  to  the  people,  in  state,  and 
order  to  get  a  better  idea  of  the  amount  of  money  re-   local  govem- 
quired.     For  the  fiscal  year  1900  the  national  government 
spent  ;^487,7i3,79i.7i  in  addition  to  the  receipts  of  the 
post-office.     In    1895    the    state   governments   expended 
$129,129,225,  and  the  amount  in  1900  probably  exceeded 


ments. 


474 


The  American  Federal  State 


Peace  and 
war  taxes  of 
United  States 
government. 


1 1 5 0,000,000.  The  census  of  1890  shows  that  the  expendi- 
tures of  local  and  municipal  governments  for  all  purposes  ag- 
gregated over  $460,000,000.  In  1900  the  total,  including 
municipal  investments,  must  have  reached  $650,000,000. 
This  would  make  the  entire  expenditures  of  all  governments 
for  that  one  year  nearly  $1,300,000,000,  almost  all  of 
which  was  raised  by  taxation. 

578.  The  National  Tax  System.  —  A  casual  examination 
of  national  expenditure  would  show  us  that  in  times  of 
peace  more  than  one-half  the  money  paid  out  by  the  national 
government  is  for  the  army  and  navy,  for  pensions  and 
interest  on  the  war  debt.  This  proportion  is  of  course 
vastly  increased  in  time  of  war,  so  that  the  ability  to  meet 
this  increase,  wholly  or  in  part,  is  one  of  the  greatest  needs 
of  the  national  system.  This  need  is  largely  met  by  the 
extensibility  of  internal  revenue  and  other  taxes.  In  time 
of  peace  the  principal  taxes  that  are  used  are  customs  duties 
and  internal  revenue,  while  taxes  added  during  periods  of 
danger  include  income  and  inheritance  taxes. 


In  1900  receipts  from  customs  was  $233,164,871.16,  from  internal 
revenue,  $295,327,926.76,  postal  service,  $102,354,579.29,  and  the 
total  reached  $669,595,431.18,  leaving  a  surplus  for  that  year  of 
$79,527,060.18. 


Three 
periods  of 
national 
taxation. 

Howe, 
Internal 
Revenue,  i-8. 


579.  History  of  National  Taxes.  —  Roughly  speaking, 
national  taxation  has  passed  through  three  periods.  The 
first  of  these  was  brief,  from  1789  to  1802,  during  which 
various  forms  of  customs  duties  and  internal  revenue  were 
used,  and  experiments  were  made  with  direct  taxes  on  lands, 
houses,  or  slaves;  besides  taxes  on  auctions  and  carriages. 
The  second,  from  1802  to  1861,  was  marked  by  an  almost 
exclusive  dependence  upon  duties,  except  for  brief  periods 
when  heavy  expenses  rendered  more  revenue  imperative. 
The  third  dates  from  the  beginning  of  the  War  of  Secession, 
at  which  time  internal  revenue  was  reincorporated  into  our 
national  system  and  various  war  taxes  were  introduced, 
notably  that  on  incomes. 


Taxation  475 

580.  Operation  of  Customs  Duties.  —  Taxes  upon  imports  Merits  and 
have  been  the  chief  reliance  of  the  national  government.   <i«»"«"ts  of 

taxes  on  im- 

rhey  have  been  used  from  the  start  for  the  double  purpose  pom. 
of  raising  revenue  and  affording  protection  to  industry,   pj^j^^^  Public 
Because  of  this  double  purpose  the  tax,  as  a  tax,  has  often  Finance,  Part 
increased  the  difficulties  that  customs  duties  always  cause:   ii.chap.vii. 
that  of  making  the  poor  pay  much  more  than  their  share  Bastabie, 
of  the  tax.     As  the  greater  part  of  the  duty  is  paid  upon  5^^533- 
goods  bought  by  all  classes,  the  man  with  an  income  of 
$10,000  probably  does  not  pay  more  than  three  times  as 
much  as  the  man  with  an  income  of  1^500  a  year.     This  is 
certainly  unfortunate,  especially  if  the  duties  are  heavy,  for 
the  poor  man  ought  to  be  exempt  as  far  as  possible  from 
all  taxation.     To  counterbalarce  these  disadvantages  there 
are  certain  nominal  gains  derived  from  this,  as  from  all 
indirect  taxes.     As  the  duty  is  paid  by  the  importer,  the 
purchaser  does  not  realize  when  the  tax  is  a  part  of  the 
price  he  has  to  pay,  or  what  part  of  the  price  is  a  tax. 
The  burden  of  the  tax  is  therefore  little  felt. 

In  connection  with  this  paragraph  the  discussion  of  the  other  sides 
of  the  tariff  (§§  606-610)  should  be  considered. 

581.  Internal  Revenue.  — At  present  internal  revenue  is  Bases  and 
quite  as  valuable  as  the  duties,  while  it  is  likely  to  be  even  advantages 

^  '  "'  of  our  excise 

more  used  in  the  future.     The  three  chief  sources  of  inter-  taxes, 
nal  revenue  proper  have  been  distilled  spirits,  fermented  pj^^n  Part. 
liquors,  and  tobacco,  the  custom  being  to  increase  the  rate  li,  chap.  VI. 
upon  these  three  and  add  new  schedules  covering  various 
business  transactions  whenever  the  need  arises.    All  of  the 
advantages  of  indirect  taxes  are  claimed  for  them,  besides 
the  merit  of  restricting  the  sale  of  articles  on  the  whole 
injurious   to  the  community.     In  case  of  war  they  are 
especially  valuable,  for  foreign  commerce  is  likely  to  be 
reduced  in  amount,  while  the  tax  rate  on  domestic  indus- 
try can  be  greatly  increased   without  seriously  crippling 
business.     Everything  considered,  they  are  the  most  satis- 
factory national  taxes  we  have  tried. 


476 


The  American  Federal  State 


Other  internal  taxes  considered  later  deal  with  incomes 
and  inheritances. 


Excise  taxes 
in  United 
States  since 
1791. 

Howe, 
Interned 
Revenue^ 
9-38. 

The  War  of 
1813. 

Howe,  39-49- 


The  Civil 
War. 

Howe,  50-8 1. 


Recent 
internal 
taxes. 

Howe,  214- 
233- 


582.  History  of  Internal  Revenue  Taxation. — The  first 
internal  revenue  taxes  were  levied  upon  distilled  spirits  in  1791  at  the 
instigation  of  Hamilton.  The  law  was  modified  the  next  year,  but  its 
attempted  enforcement  led  in  Pennsylvania  to  what  is  known  as  the 
whiskey  rebellion  (1794).  The  same  year  as  this  revolt,  separate  in- 
ternal taxes  upon  carriages  and  auctions  were  created,  and  later 
(1797)  stamp  taxes  were  first  used.  All  of  these,  as  well  as  the  direct 
taxes  adopted  during  the  same  period,  were  repealed  in  1802. 

It  was  not  until  181 3  that  the  inadequacy  of  the  revenue  forced 
Congress  to  return  to  some  form  of  internal  taxation.  The  new  sched- 
ules included  liquor  taxes  and  licenses,  stamp  duties  on  legal  instru- 
ments, carriage  and  auction  taxes:  in  short,  the  whole  scheme  was 
copied  from  the  Federalists.    These  taxes  lasted  four  years. 

During  the  War  of  Secession  no  tax  that  we  should  call  internal  was 
assessed  until  1862.  On  July  i  of  that  year  an  omnibus  bill,  fore- 
shadowing the  system  which  was  to  include  everything  and  everybody, 
was  adopted  by  Congress,  but  the  rates  were  much  lower  than  those 
accepted  later.  Among  other  provisions  were  those  for  the  taxation 
of  all  kinds  of  liquors,  corporations,  inheritances,  incomes,  stamp 
taxes  on  business  papers,  and  taxes  on  business  in  general  and  every 
operation  in  the  process  of  manufacturing.  Subsequent  laws  increased 
the  rates  and  added  new  sources  of  revenue,  especially  that  of  June 
30,  1864,  and  no  reduction  was  attempted  till  1866,  though  by  X869 
the  amount  of  revenue  from  this  source  was  but  one-third  what  it  was 
in  1866.  However,  the  difficulties  encountered  because  there  had 
been  no  taxes  of  this  kind  before  1861  are  apparent  when  we  notice 
that  in  1864  the  total  from  internal  revenue  and  income  taxes  was  but 
Ji  10,000,000,  while  in  1866  it  had  risen  to  $311,000,000. 

From  1868  to  1898  the  only  important  internal  revenue  taxes  were 
upon  distilled  or  fermented  liquors  and  tobacco.  With  the  outbreak 
of  the  Spanish- American  War  in  1898  the  rates  on  these  articles  were 
greatly  increased  and  new  schedules  added,  those  creating  stamp  taxes 
on  certain  kinds  of  manufactured  articles  and  upon  business  papers 
being  the  most  profitable.  Most  of  these  new  sources  of  revenue  have 
been  dropped  (1901). 


Taxation  of  583.   Income  Taxes.  —  Although  we  have  no  income  tax 

mcomesm  ^^  ^^  present  time,  the  recent  efforts  made  to  levy  one 

other  coun-  ^                                                                                         ■' 

tries.  (1894),  the  fact  that  we  had  such  a  tax  for  ten  years,  and 


Taxation  477 

that  some  form  of  this  tax  is  levied  in  the  most  advanced 

countries  of  Europe  make  it  worth  while  to  consider  it  for 

a  moment. 

The  income  taxes  of  1861-1872  grew  out  of  the  pressing  incometaxes 

need  for  revenue,  and  did  not  greatly  consider  whether  the  o/^heCmi 

War. 
tax  Itself  was  good  or  not.    At  no  time  were  incomes  under 

$600  included,  and  the  progressive  principle  was  recog-  jo^*^'^°~ 
nized  most  of  the  time;  so  that  in  the  heaviest  tax  levied, 
incomes  between  $600  and  $5000  paid  five  per  cent,  those 
over  $5000  ten  per  cent.  In  spite  of  the  popular  feeling 
that  such  a  tax  is  an  invasion  of  rights,  and  impossible  of 
administration  because  it  places  such  a  premium  on  dis- 
honest statement,  there  is  evidence  that  it  was  more  suc- 
cessful than  the  general  property  tax  then  and  now  in  such 
general  use  among  the  states. 

The  income  tax  of  1894  grew  out  of  need  for  revenue,   Proposed  tax 
but  many  considered  it  purely  a  class  tax,  to  make  the  °^^^94- 
wealthier  members  of  society  pay  more  than  their  share.   Seiigman,  E. 
No  incomes  below  1^4000  were  assessed,  but  two  per  cent  ^'  ix 
was  levied  upon  all  excess  over  $4000.     The  tax  was  de-    (1894),  610- 
clared  unconstitutional  by  the  Supreme  Court,  because  they  ^^^' 
believed  it  a  direct  tax,  which  was  not  levied  upon  the  states 
in  proportion  to  population  as  directed  by  the  Constitution. 

584.  Other  National  Taxes.  —  Direct  taxes  have  been  Direct  taxes, 
little  used  since  the  Constitution  was  adopted,  having  been  Howe,  82-90. 
voted  only  five  times  by  Congress.  The  whole  amount  to 
be  raised  is  specified,  and  the  sums  which  each  state  shall 
contribute  is  determined  by  its  population.  Congress, 
however,  has  named  the  bases  upon  which  the  tax  is  to  be 
assessed,  usually  lands  only,  but  at  times  real  estate,  houses, 
and  slaves. 

Inheritance  taxes  have  been  tried  twice,  in  connection  inheritance 
with  the  War  of   Secession   and   that  with   Spain.     The  ***"• 
earlier  one  introduced  the  progressive  principle  only  for  Howe,  114- 
relationships,  the  later  one  increases  the  rate  both  accord-     *°" 
ing  to  the  amount  of  the  bequest  and  the  lack  of  blood 
relation. 


478 


The  American  Federal  State 


Percentage 
taxes. 

Adams,  430- 
434.  467-476. 


General  uni- 
formity 
throughout 
United 
States. 


What  it  in- 
cludes. 

Seligman, 
Essays  in 
Taxation, 
54-59. 

Plehn,  Pt.  II. 
chap. IX. 


Direct  taxes  were  voted  in  1798,  1813,  1814,  1815,  and  1861.  The 
last  was  never  fully  paid,  and  the  sums  collected  were  returned  to  the 
respective  states  in  1891.  The  law  of  1864  made  the  rate  for  the 
inheritance  tax  from  one  to  six  per  cent;  that  of  1898  provides  for  a 
minimum  of  three-fourths  per  cent  and  a  maximum  of  fifteen  per  cent. 
Many  states  also  have  taxes  upon  inheritances. 

585.  Administration  of  National  Taxes.  —  The  methods 
employed  in  the  administration  of  these  taxes  are  more  or 
less  alike.  The  government  knows  about  how  much  money 
it  needs,  but  it  cannot  levy  the  taxes  by  fixing  the  amount 
to  be  derived  and  then  arranging  the  rate  to  correspond.  The 
Ways  and  Means  Committee  of  Congress,  as  we  have  seen 
(§§  292-294),  decide  what  the  tax  rate  shall  be  on  all  articles 
imported  or  produced,  so  that  the  revenue  of  the  govern- 
ment depends  on  the  amount  of  dutiable  goods  imported  or 
the  quantity  of  liquor  and  tobacco  manufactured.  Duties 
are  collected  at  the  port  where  the  goods  enter  the  country, 
the  goods  being  apprized  and  the  tax  collected  by  officials 
appointed  by  the  government.  For  the  administration  of 
the  internal  revenue  tax,  the  country  is  divided  into  internal 
revenue  districts  for  each  of  which  collectors  are  appointed. 

586.  State  and  Local  Taxes. — There  is  of  course  a  cer- 
tain lack  of  uniformity  in  the  state  and  local  taxes  used  in 
different  parts  of  our  country,  but  because  of  many  similari- 
ties and  because  the  taxing  power  exercised  by  the  cities 
and  counties  is  really  a  grant  of  the  state  to  those  local 
divisions,  we  shall  consider  them  together.  - 

587.  The  General  Property  Tax.  —  The  most  common  tax 
in  the  United  States  is  what  is  called  the  general  property 
tax.  It  is  used  by  practically  every  state  and  by  every  sub- 
division of  the  states.  It  covers  almost  everything  that 
makes  up  a  man's  wealth.  It  includes  all  real  estate  (land 
and  houses),  and  usually  all  personal  property  such  as  house- 
hold furniture,  business  stock,  jewelry,  money,  bonds  (ex- 
cept those  exempt  bylaw),  credits,  etc.  Such  a  tax  is  well 
suited  to  a  community  where  agriculture  is  almost  the  only 
occupation,  and  where  in  consequence  cities  and  business 


Taxation  479 

interests  are  few.  There  it  is  possible  for  the  assessors  to 
learn  with  some  degree  of  accuracy  what  property  a  man 
owns,  and  little  of  his  personal  property  will  escape  taxation. 
The  fact  that  this  tax  was  so  well  adapted  to  conditions  one 
hundred  years  ago  does  not,  however,  prove  that  it  is  suitable 
for  present  needs. 

588.  Difficulties    in    assessing    the    General    Property  Evasion  of 

Tax.  — The  most  serious  difficulty  is  encountered  when  the  Payment  on 

assessors  try  to  determine  what  each  man's  assessment  shall  property. 

be.     The  houses  and  lands  cannot  run  away,  and  the  estimate    .  . 

■' '  Adams, 

of  their  value  over  a  small  area,  such  as  a  county,  is  compara-  Finance,  ^■ii^ 
tively  simple.     But  it  is  something  quite  different  to  ascer-  ^^• 
tain  the  true  valuation  of  personal  property.     Citizens  can  Seligman, 
easily  misrepresent  the  value  of  many  articles,  while  others,  ^"37- 
like  bonds,  may  be  entirely  concealed.     The  law  tries  to  pre- 
vent such  an  evasion  by  compelling  every  property  owner 
to  make  out  a  sworn  statement  or  tax  list  stating  just  what 
he  possesses,  and  often  stating  what  it  is  worth.     Although 
heavy  penalties  are  prescribed  for  those  who  return  a  false 
statement,  it  is  the  custom  everywhere  to  leave  out  those 
items  whose  omission  would  not  be  especially  observable. 
As  these  statements  are  made  the  basis  of  the  assessors'  esti- 
mate, the  assessment  lists  usually  show  the  same  omissions 
as  the  statements,  though  the  assessor  is  not  bound  to  follow 
them. 

589.  Defects  of  General  Property  Tax.  —  Since  the  general  The  poor 
property  tax  can  be  so  imperfectly  assessed  over  even  a  "^^^  P^y^ 

•^     t^       -I  r  J  much  more 

small  area,  it  leads  to  gross  inequalities  in  the  burden  it  than  his 
places  upon  different  persons.     Those  who  have  a  great  deal  share. 
of  land,  with  very  little  other  wealth,  have  their  property  Adams  and 
assessed  at  perhaps  seventy  per  cent  of  its  market  value,  above*^"'^ 
while  the  capitalist  who  has  put  his  money  into  railway  stock 
may   pay  taxes  on  less   than  twenty-five  per  cent  of  his 
wealth.     This   inequality   is   the   more   glaring   because   it 
weighs  heaviest  on  the  class  least  able  to  bear  it  —  on  those 
engaged  in  agriculture.     It  makes  the  poor  man  in  the  city 
pay  more  than  his  share  in  taxes  on  his  little  home  or 


48o 


The  American  Federal  State 


Inequalities 
of  the  general 
property  tax 
over  large 
areas. 

Seligman, 
24-26. 

Adams, 
445-449. 


Problems  in 
the  taxation 
of  corjKjra- 
tions. 

Adams, 
449-466. 


indirectly  through  rent,  while  his  richer  neighbor  contributes 
much  less  in  proportion  to  his  means,  although  he  is  abun- 
dantly able  to  give  a  much  larger  part  of  his  income. 

590.  Equalization.  —  These  difficulties  and  inequalities 
apply  to  both  large  and  small  areas.  Another  problem  con- 
fronts us  when  the  area  is  of  any  considerable  size.  After 
the  town  assessors  have  completed  their  work,  it  is  necessary 
for  some  body  of  men  in  the  county  to  take  the  assessments 
from  the  different  towns  and  make  sure  that  the  assessment 
in  town  A  and  in  town  B  is  made  at  practically  the  same 
per  cent  of  the  actual  value.  This  body  is  called  the  Board 
of  Equalization.  If  it  happens  that  the  assessment  in  town 
A  seems  to  be  at  fifty  per  cent  and  that  of  town  B  at  eighty 
per  cent,  while  the  average  for  the  county  is  seventy  per 
cent,  they  will  necessarily  raise  the  assessment  in  town  A  and 
lower  that  in  B  before  the  county  tax  is  levied.  But  it  is 
almost  impossible  to  learn  with  any  exactness  such  differ- 
ences ;  and  when  it  can  be  done,  the  attempt  to  equalize 
the  discrepancy  is  more  often  than  not  only  partially  success- 
ful. The  same  difficulties  much  increased  are  encountered 
by  the  state  board  that  attempts  to  equalize  the  assessments 
from  the  different  counties.  Thus  it  often  happens  that  a 
county  in  one  part  of  the  state  pays  state  taxes  on  an  assess- 
ment from  twenty-five  to  sixty  per  cent  higher  than  the  aver- 
age of  the  state  for  the  same  kinds  of  property,  and  it  may 
be  that  the  evasion  of  the  personal  property  tax  by  others 
will  make  this  one  county  pay  more  than  twice  as  much  in 
proportion  to  its  wealth  as  the  average  of  the  state. 

591.  Corporation  Taxes. — Many  states  are  now  making 
an  effort  to  pay  their  expenses  without  using  the  general 
property  tax,  leaving  that  entirely  to  the  localities.  These 
have  recourse  especially  to  corporation  taxes,  levied  upon 
certain  classes  of  private  corporations,  such  as  banks,  rail- 
ways, insurance,  telephone,  and  manufacturing  companies. 
The  tax  has  not  been  used  long  enough  to  make  the  methods 
of  assessment  at  all  uniform.  In  some  cases  it  is  assessed 
upon  the  capital  stock  or  upon  the  supposed  value  of  the 


Taxation  481 

franchise,  in  others  upon  the  gross  or  net  earnings,  or  upon 
the  dividends  declared.  The  tax  is  certain  to  fill  an  impor- 
tant place  in  the  state  systems  of  the  future,  as  it  does  in  the 
systems  of  the  most  progressive  countries  of  Europe.  The 
growth  of  industrial  as  distinguished  from  agricultural  com- 
munities means  that  the  general  property  tax  must  be  dis- 
carded ;  and  that  separate  taxes,  like  the  corporation,  real 
estate,  and  business  taxes,  will  probably  take  its  place.  The 
things  most  necessary  in  making  such  a  change  are  to  see 
that  each  person  shall  be  asked  to  pay,  just  as  far  as  possi- 
ble, in  proportion  to  his  ability,  that  changes  shall  be  suited 
to  the  conditions,  and  that  the  burden  placed  upon  industry 
shall  not  be  so  heavy  as  to  interfere  with  the  general  pros- 
perity of  the  community. 

592 .  Special  Assessments.  —  Our  cities  make  very  frequent  Local  assess- 
use  of  what  might  be  termed  a  form  of  tax,  usually  called  a  '"^"^^• 
special  assessment.    When  a  street  is  to  be  opened  or  im-  Seiigman, 
proved,  when  a  sewer  is  to  be  put  in,  or  a  sidewalk  laid, 
instead  of  paying  for  all  of  the  expense  out  of  the  city  funds, 
a  special  assessment  is  made  upon  the  property  that  will 
derive  the  greatest  benefit  from  the  improvement.     In  most 
cases  this  is  the  property  immediately  adjacent,  but  may  be 
understood  to  mean  a  larger  district  in  which  the  rate  of 
assessment  varies  with  the  distance  from  the  improvement. 


QUESTIONS  AND   REFERENCES 

National  Taxes  (§§  574-585) 

a.  On  the  income  tax  of  Great  Britain,  see  Baslable,  Public  Finance^ 
447-450,  and  Cohn,  Science  of  Finance^  488-494.  On  those  of  the 
states,  Seiigman,  "Colonial  and  State  Income  Taxes,"  in  P.S.  Q.,  X 
(1895),  221-247. 

1.   Should  taxes  be  levied  according  to  a  person's  ability  to  pay,  or 
according  to  the  benefit  he  derives  from  the  expenditures  of  the  gov- 
ernment ?      Should  they  be  progressive  or  proportional  ?      What  is 
the  best  test  of  ability,  and  why  ? 
a  I 


4^2  The  American  Federal  State 

2.  Apply  the  test  of  a  good  tax  (§  575)  to  the  different  national  and 
state  taxes,  and  notice  what  characteristics  each  has  or  lacks. 

3.  Should  we  have  a  national  income  tax  like  that  of  Great  Britain  ? 
like  that  of  Germany  ?  Are  the  chief  objections  to  an  income  tax  con- 
stitutional, theoretical,  or  practical  ? 

i.  What  articles  imported  are  taxed  heavily  purely  for  the  sake  of 
revenue  ?  Does  the  principal  burden  fall  on  the  articles  of  luxury  or 
necessity  ? 

ii.  By  the  present  law  what  is  the  tax  on  spirits,  malt  liquors,  to- 
bacco ?  Is  there  any  stamp  tax  now  on  commercial  transactions  ? 
What  other  articles  are  subject  to  an  internal  tax  ? 

iii.  What  other  countries  now  have  inheritance  taxes  (Bastable, 
549-562)  ?  What  is  the  smallest  bequest  taxed  in  our  present  law  ? 
What  is  the  lowest  rate,  and  to  whom  ?  the  highest  ? 


State  and  Local  Taxes  (§§  586-592) 

a.  Compare  the  opinions  upon  the  single  tax  given  :n  Shearman's 
Natural  Taxation^  115  et  seq.,  and  in  Lusk's  "  Single  Tax  in  Opera- 
tion," Arena,  XVIII  (1897),  79-89,  with  those  expressed  by  Cohn, 
Science  of  Finance,  374-381,  and  by  Seligman,  Essays  in  Taxation, 
chap.  III. 

b.  For  suggestions  that  may  prove  valuable  to  the  tax  systems  of  the 
future,  consult  Seligman,  "Recent  Reforms  in  Taxation,"  chap.  X  of 
his  Essays;  Adams,  "Suggestions  for  a  Revenue  System,"  in  his /i- 
nance,  490-516;  and  Ely's  "Taxation  as  It  Should  Be,"  Pt.  Ill  of  his 
Taxation. 

1.  Why  is  the  general  property  tax  so  universal  if  its  defects  are  so 
numerous  ?  Can  the  defects  be  remedied  by  proper  administration  ? 
Has  this  anywhere  been  done  ? 

2.  Can  a  land  tax  be  successfully  operated  over  a  large  territory  ? 
Give  your  reasons  in  full.  What  is  the  best  means  of  reaching  personal 
property  ?    Can  it  be  done  by  a  local  tax  ? 

3.  What  are  the  objections  to  a  locality's  assessing  income,  inheri- 
tance, or  corporation  taxes  ?  to  a  state's  using  any  or  all  of  these  unless 
other  states  do  the  same  ? 

4.  Have  the  ruling  classes  ever  paid  their  full  share  of  the  taxes  ? 
Is  there  any  danger  that  democracy  may  seek  financial  reform  through 
attacks  upon  the  rich  ?  How  may  taxation  be  used  in  the  future  to 
solve  some  of  the  problems  of  society  ? 


Taxation  483 

For  the  following,  see  state  political  code  and  finance  reports. 

i.  What  proportion  of  your  expenses  in  state,  county,  and  city  are 
paid  by  the  general  property  tax  ?  Upon  what  is  it  legally  assessable  ? 
Compare  the  assessment  upon  real  estate  with  that  upon  personal 
property  for  your  county.  What  part  of  the  latter  probably  escapes 
notice  ?     What  is  the  tax  rate  for  the  city  ?  the  county  ?  the  state  ? 

ii.  Who  is  your  assessor  ?  Does  he  assess  for  both  town  and 
county  ?  Have  you  county  and  state  boards  of  equalization  ?  If  so, 
how  are  they  chosen  ?     How  may  any  assessment  be  lowered  ? 

iii.  If  you  have  a  state  corporation  or  franchise  tax,  learn  whether 
the  assessment  is  made  upon  the  gross  receipts,  net  receipts,  or  some- 
thing else,  and  ascertain,  if  you  can,  how  successful  the  tax  is.  Have 
you  any  other  taxes  ?    If  so,  what  ?    Give  ao  account  of  each. 


CHAPTER  XXVI 

MONEY 

General  References 

Willoughby,  Rights  and  Duties  of  American  Citizenship,  281-292. 
Gide,  Political  Economy,  186-235.     On  the  economic  aspects  of  ques- 
tions relating  to  money. 
White,  Money  and  Banking.    Presents  from  gold  standpoint  a  good 

historical  summary  of  the  experience  of  the  United  States  with 

bimetallism,  paper  money,  and  banking. 
Watson,  History  of  Coinage  in  the  United  States.    On  the  history  of  the 

great  coinage  laws. 
Knox,  United  States  Notes.    Especially  upon  greenbacks. 
Bullock,  Essays  in  the  Monetary  History  of  the  United  States. 
Gordon,  Congressional  Currency.     Historical. 
Noyes,  Thirty  Years  of  American  Finance  {\Z(>^-\^^.     Emphasizes 

the  connection  between  business  and  government  finance. 
Laughlin,   History  of  Bimetallism   in   the   United  States.     The  best 

history  of  the  subject  from  gold  monometallist  point  of  view. 
Andrews,  An  Honest  Dollar.    Advocates  free  coinage  of  gold  and  silver 

at  a  fixed  ratio. 
Walker,  International  Bimetallism.     Principally  historicaL 
Giffin,  The  Case  against  Bimetallism. 
Darwin,  Bimetallism. 

Taussig,  Silver  Situation  in  the  United  States,  to  1893. 
Abundant  literature  in  periodicals  from  1892  to  1900,  most  of  which 

is  controversial. 


Money  as  a 
medium  of 
exchange. 


593.  The  Two  Functions  of  Money.  —  Money  performs 
two  entirely  distinct  functions  in  the  world  of  business.  It 
is  a  medium  of  exchange  in  everyday  transactions,  it  also 
serves  as  a  standard  for  deferred  payments. 

(i)  Instead  of  trading  one  thing  directly  for  another,  as, 
e.g.  five  sheep  for  a  cow,  persons  who  buy  or  sell  use  some 
third  substance,  which  is  given  in  payment  for  an  article  re- 

484 


Money  485 

ceived,  or  accepted  in  place  of  anything  sold.    Since  the  Gide,  Pol. 
person  who  has  cows  for  sale  probably  does  not  care  to  buy  ^se-igi. ' 
sheep,  the  convenience  of  a  regular  medium  of  exchange 
which  is  good  anywhere  and  at  all  times  for  the  purchase  of 
anything  he  may  desire  is  of  the  highest  value.     This  func- 
tion is  performed  by  currency,  or  substitutes  for  currency. 

(2)  The  money  of  to-day  is,  in  addition,  a  standard  for  Money  as  a 
deferred  payment.  If  a  man  borrows  I5000  to-day,  to  be  defe^^ed  pay- 
paid  in  ten  years,  it  is  very  important  to  the  lender  that  he  ments. 
obtain  at  the  end  of  that  period  a  sum  equal  to  what  he 
loaned,  and  to  the  borrower  that  he  be  not  obliged  to  pay 
more.  The  answer  to  the  question  how  we  shall  ascertain 
what  amount  is  exactly  equivalent  in  ten  years  to  the  $5000 
is  always  that  the  same  number  of  dollars  in  legal  money 
shall  be  so  considered  unless  the  parties  in  the  contract 
agree  upon  something  else.  One  thing  ought  to  be  care- 
fully noticed.  These  two  functions  are  not  necessarily  per- 
formed by  the  same  substance  —  money  —  for  it  may  be 
felt  that  1^5000  in  ten  years  will  be  worth  more  or  less  than 
the  same  number  of  dollars  now,  whereas  some  other  com- 
modity might  be  found  which  would  make  it  possible  in  the 
ten  years  to  return  exactly  what  was  borrowed,  therefore 
that  other  commodity  is  used  as  the  standard  of  value  in 
deferred  payments. 

The  reason  why  coin  is  used  for  both  of  these  purposes 
is,  it  is  the  most  convenient  medium  of  exchange,  and 
because  its  real  value  fluctuates  less  than  that  of  almost 
anything  else. 

594.   Government  and  the  Money  System.  —  In  order  that  Government 

people  doing  business  may  have  a  currency  upon  which  they  <^"'g"a*^s 

can  rely,  this  whole  subject  is  left  to  the  charge  of  the  gov-  of  coinage 

emment,  with  the  idea  of  obtaining  the  best  results  for  all  ^°^  ^^^^ 

.  ,  ,  coins  shall  be 

concerned.     The  duty  of  government  is  not,  then,  to  select  used. 

any  medium  of  exchange  it  pleases,  or  arbitrarily  to  legalize 

some  standard  without  considering  whether  it  is  adapted  to 

the  conditions ;  but  to  learn  what  medium  best  serves  the 

needs  of  the  nation,  and  to  protect  the  rights  of  those  doing 


906. 


486  The  American  Federal  State 

business  for  a  long  or  short  time.  This  work  is  largely 
negative  and  calls  for  as  little  interference  as  possible  with 
the  coin  of  the  realm ;  but  requires,  among  other  things, 
that  the  government  should  decide  whether  the  country 
have  monometallism  or  bimetallism,  what  shall  be  the  weight 
of  the  coins  in  use,  what  paper  money,  if  any,  shall  be  issued 
by  the  government,  and  whether  this  shall  be  supplemented 
by  bank  notes,  —  certainly  a  very  wide  and  important  field 
of  legislation. 
The  legal  595.   Effect  of  Bimetallism.  —  A  nation  has  a  bimetallic 

ratio  an  its  gygtg^i  when  its  mints  are  open  to  both  gold  and  silver,  and 
any  one  having  gold  or  silver  bullion  may  take  it  to  the 
Economy,  ™^^t  ^^^  \i2s&  it  coiued  iuto  doUars  or  any  other  coin 
194-198,  202-  authorized  by  law.  But  in  order  that  this  may  be  possible, 
the  government  must  first  tell  how  many  grains  of  pure 
silver  will  make  a  dollar,  and  how  many  grains  of  gold  a 
dollar  contains.  In  other  words,  the  government  must 
establish  a  legal  ratio,  stating,  for  example,  as  ours  did  in 
1792,  that  it  considers  one  ounce  of  gold  equal  in  value  to 
15  ounces  of  silver,  and  that,  consequently,  24I  grains  of 
gold  or  371^  grains  of  silver  (fifteen  times  as  much),  if 
presented  at  the  mint,  would  be  coined  into  dollars.  If  this 
legal  ratio  happens  to  coincide  exactly  with  the  market  ratio, 
that  is,  if  one  ounce  of  gold  is  actually  worth  in  ordinary 
transactions  15  ounces  of  silver,  both  kinds  of  bullion  will 
be  brought  for  coinage.  If  the  legal  and  market  ratios 
differ,  only  one  kind  of  bullion  will  come  in  for  this  reason. 
Assume  that  24  grains  of  gold  are  worth  as  much  as  371 1^ 
grains  of  silver,  then  a  person  would  certainly  be  foolish  to 
take  24f  grains  and  have  it  made  into  a  coin  that  would  be 
worth  exactly  the  same  as  the  371 J  grains  of  silver.  He 
would,  in  short,  put  in  103  cents  and  take  out  100,  because 
the  silver  dollar  is  legally  worth  100  cents.  Hence,  it  comes 
about  that  when  the  market  ratio  differs  from  the  legal  ratio, 
only  one  metal  is  coined  at  a  time,  the  other  metal  being 
worth  more  in  the  form  of  bullion  than  in  the  form  of  coin. 
Consequently,  under  a  bimetallist  system,  since  the   legal 


Money  487 

ratio  is  almost  never  exactly  the  same  as  the  market  ratio, 
only  one  metal  is  likely  to  be  coined  at  a  time. 

596.   Advantages  and  Disadvantages  of  Bimetallism.  —  Difficulty  in 
Two  things  need  to  be  considered  in  this  connection  that  ""aintaming 

a  correct 

affect  the  practical  usefulness  of  bimetallism,  (i)  The  legal  ratio, 
market  ratio  does  not  greatly  depend  upon  the  legal  ratio, 
i,e.  the  legal  ratio  must  accommodate  itself  to  the  market  202.^  ^ 
ratio,  and  not  the  reverse.  Why?  Because  the  value  of 
gold  and  silver,  like  that  of  everything  else,  depends  upon 
the  demand  for  and  the  supply  of  each.  The  demand  for 
both  metals  comes  largely,  but  by  no  means  wholly,  from 
the  governments  of  the  world.  If  the  demand  were  con- 
stant and  the  supply  uniform,  few  difficulties  would  arise ; 
but  this  is  the  exception,  marked  changes  in  the  market 
value  of  each,  and  therefore  in  the  market  ratio  of  one  to 
the  other,  being  more  frequent. 

(2)  Under  a  bimetallist  standard,  while  but  one  metal  is  Advantage  of 
likely  to  be  coined  at  a  time,  this  metal  is  the  one  whose  "^'"S  the 

,  ,  ,        -r^         1  .  r    1  •  .  world  supply 

value  has  decreased.  But  the  comage  of  this  one  mcreases  of  both  gold 
the  demand  for  it,  and  tends  to  raise  the  price  of  every  ounce  and  silver. 
of  it.  If  the  market  ratio  is  but  little  different  from  the  legal 
ratio,  this  demand  will  bring  the  two  ratios  together.  Then 
if  the  second  metal  is  coined  for  a  time,  because  "  cheaper," 
a  like  result  follows.  Consequently,  the  price  of  the  one 
coined,  i.e.  the  cheaper  one,  will  not  increase  indefinitely, 
but  only  until  its  price  is  high  enough  so  that  the  other 
becomes  the  cheaper.  By  this  process  of  a  demand  first 
on  the  supply  of  one  and  then  on  that  of  the  other,  it  is  not 
possible  for  the  price  of  either  to  go  on  rising  continuously, 
for  as  soon  as  it  becomes  the  dearer  metal  the  demand  is 
greatly  diminished.  Bimetallism,  therefore,  prevents  a  great 
rise  in  price  of  either  metal,  and  draws  upon  the  world 
supply  of  both  for  its  stock  of  coins.  Yet  experience  proves 
that  the  market  ratio  does  not  rapidly  approach  that  estab- 
lished by  law,  as  we  can  see  below  (§  598),  where  the  two 
were  not  very  dissimilar ;  and  as  gold  and  silver  are  easily 
shipped  from  one  country  to  another,  the  market  ratio  is 


488 


The  American  Federal  State 


Explanation 
of  terms 
dearer  and 
cheaper 
metals. 


Nature  of 
monomet- 
allism. 


Chief  disad- 
vantage, 

Gide,  207- 

3X1. 


never  likely  to  become  the  same  as  the  legal  one  unless 
there  is  a  uniform  international  ratio  and  an  international 
demand.  The  great  advantage  of  bimetallism,  namely,  that 
it  tends  to  use  from  the  world's  stock  of  both  metals,  can  be 
perfectly  obtained  only  under  these  conditions. 

In  the  paragraph  just  given,  the  expressions  dearer  and  cheaper 
metals  are  used.  They  mean  merely  this:  that  if  the  legal  ratio  is  16 
to  I  and  the  market  ratio  20  to  i,  then  in  the  market  one  ounce  of 
gold  can  be  excharged  for  twenty  ounces  of  silver,  so  that  silver  is 
cheaper  than  the  law-making  body  believed  it  to  be  when  they  estab- 
lished a  legal  ratio  of  16  to  i,  gold  being  dearer.  If,  on  the  other 
hand,  one  ounce  of  gold  is  worth  only  twelve  ounces  of  silver  in  the 
market,  gold  is  the  cheaper  metal  and  silver  the  dearer  one.  If  the 
legal  ratio  is  16  to  i,  and  that  of  the  market  12  to  i,  under  bimetallism 
only  gold  (which  is  then  cheaper)  will  be  coined  until  the  market  ratio 
exceeds  16  to  i;  but  if  the  market  ratio  is  20  to  i,  silver  only  will  be 
coined  till  such  a  time  as  the  increased  demand  for  silver  shall  increase 
its  value  as  compared  with  gold,  and  the  market  ratio  becomes  less 
than  16  to  I. 

597.  Monometallism.  —  When  the  mints  of  a  country  are 
open  to  the  free  coinage  of  but  one  metal,  that  nation  has  a 
legal  monometallic  standard.  It  does  not  then  trouble  itself 
about  the  market  ratio  between  the  two  metals,  but  fixes 
the  number  of  grains  in  its  various  coins,  and  permits  any 
one  to  exchange  for  the  coin  desired  that  amount  of  the 
metal  which  is  preferred  by  the  government.  The  chief  dis- 
advantage of  this  system  is  that  it  makes  an  extra  demand 
upon  just  one  metal,  so  that  the  value  of  an  ounce  of  that 
metal  is  likely  to  increase  continuously,  and  not,  as  under  bi- 
metaUism,  until  a  definite  limit  is  reached.  For  example, 
under  monometallism  the  actual  value  of  a  dollar  (measured 
by  what  it  can  purchase)  may  increase  at  the  rate  of  one 
per  cent  a  year,  so  that  a  person  borrowing  $5000,  at  the 
end  of  ten  years  would  really  pay  back  ^^500  more  than  he 
received.  The  number  of  dollars  repaid  would  be  only 
5000,  but  they  would  be  equal  in  actual  value  to  ^5500  at 
the  time  the  loan  was  made.  This  defect  may  be  avoided 
partially  by  having  the  government  buy  and  coin  some  of 


Money  489 

the  other  metal.    This  can  be  done  only  when  each  coin  Disadvan- 
of  the  second  metal  would  possess  less  value  as  bullion  than  ^^^^  partially 

'^  removed  by 

similar  coins  of  the  first ;  that  is,  if  gold  is  subject  to  free  subsidiary 

coinage,  a  silver  dollar  that  contains  a  smaller  amount  of  coinage, 
silver  than  can  be  purchased  in   the  market  with  a  gold  Whiter 
dollar  may  be  issued   by  the  government,  provided  the  ^^°^'y  ^-"^ 
government  guarantees   that  it  shall  be  accepted  by  the  33-37. 
government  and  by  the  people  on  a  par  with  the  gold  dol- 
lar; but  if  the  silver  in  this  same  dollar  is  worth  more  in 
the  market  than  the  gold  bullion  in  the  gold  dollar,  no  one 
would  pay  his  debts  in  silver  coins,  but  would  sell  the  silver  in 
them  for  gold,  take  the  gold  to  the  mint,  and  get  coins  for  it. 

598.   Mono-  and  Bi-metallism  in  the  United  States  (1792-  Ratio  of  15 
1870).  —  What  has  been  our  experience  with  these  money  '°^  W92- 
systems  ?    The  first  definite  action  taken  by  the  national 
government  was  in  1792,  when,  upon  the  recommendation    coinage  in 
of  Hamilton,  it  was  decided  to  have  free  coinage  of  both   t/.  s.,  53-77. 
gold  and  silver  at  a  ratio  of  15  to  i,  which  was  a  little 
less   than   the  market   ratio  then  and  later.     The  weight 
of  the  silver  dollar  was  fixed  at  371^  grains  fine,  and  of  the 
gold  dollar  at  2\\  grains  of  pure  gold,  with  alloy  added  in 
each.     As  there  was  very  little  gbld  or  silver  in  this  country 
the  coinage  was  light,  and  the  coins  produced  were  almost 
all  exported. 

In  1834  the  ratio  was  changed  to  practically  16  to  i,  Laws  of  1834 
which  was   higher   than   that  of  the   market,    bimetallism  ^^^  ^^^3- 
being  retained.      The   silver   dollar   contained   the   same  Ratio  of  16 
amount  of  pure  metal,  but  the  gold  dollar  was  reduced  in 
weight  to  23.22  grains  fine.     A  very  great  increase  in  the  W^^son, 
coinage  of  gold  followed,  while  that  of  silver  dropped  off. 
After  1850  the  gold  production  in  California  increased  the 
supply  of  that  metal  to  such  an  extent  that  an  ounce  of  gold 
would  sell  for  less  than  15^  ounces  of  silver  in  ordinary 
transactions,  and  silver  bullion  rarely  sought  the  mint.     In 
order  to  have  fractional  currency  for  business,  Congress  in 
1853  made  the  silver  coins  of  a  smaller  denomination  than 
one  dollar  lighter  than  they  had  been,  and  had  the  govern- 


490 


The  American  Federal  State 


The  law  of 
1873- 

Gordon, 
Cong.  Cur- 
rency, 96-102. 

White, 
Money,  213- 
323. 


Bland- 
Allison  act  of 
1878. 

White,  198- 
aoa. 


Sherman  act 
of  1890. 

White,  aoa- 
ao8. 


Act  of  1900. 


ment  buy  the  silver  and  make  the  coins.  The  silver  dollar 
remained  subject  to  free  coinage,  though  it  was  worth  more 
in  the  form  of  bullion  than  of  dollars ;  so  an  American  silver 
dollar  was  almost  unknown  at  that  period. 

599.  "The  Battle  of  the  Standards"  (1870-1900). — 
The  cheap  paper  money  of  the  Civil  War  drove  all  metallic 
currency  out  of  use  for  a  long  time  afterward  except  at  a 
heavy  premium.  While  this  condition  lasted,  it  was  sug- 
gested in  1870  that  the  free  coinage  of  the  silver  dollar  be 
discontinued.  As  only  gold  would  have  been  coined  even 
had  we  been  on  a  hard  money  basis,  the  question  awakened 
little  interest,  and  in  1873  a  law  was  passed  which  practically 
placed  us  upon  a  gold  monometallic  basis  with  free  coinage 
of  gold  only.  But  the  increase  in  the  production  of  silver 
about  that  time,  together  with  a  reduction  in  the  demand, 
because  Germany  changed  to  gold  monometallism  and 
France  expected  to  do  so,  raised  the  market  ratio  above 
16  to  I,  and  aroused  a  demand  for  renewed  silver  coinage. 

This  demand  was  recognized  in  the  Bland-Allison  bill  of 
1878.  As  originally  proposed,  it  reestablished  bimetallism 
with  a  legal  ratio  of  16  to  i,  and  in  that  form  passed  the 
House ;  but  in  the  Senate  a  change  was  made  by  which  the 
government  was  to  buy  from  two  to  four  million  dollars' 
worth  of  silver  bullion  every  month  and  coin  it  into  silver 
dollars.  The  compromise  was  accepted  by  the  House  and 
vetoed  by  President  Hayes,  but  passed  by  large  majorities 
over  his  veto. 

In  1890  the  Senate  passed  a  silver  free  coinage  bill,  which 
was  altered  at  the  wishes  of  the  House  much  as  the  bill  of 
1878  had  been  by  the  Senate.  As  enacted  into  law,  it 
authorized  the  Secretary  of  the  Treasury  to  buy  4,500,000 
ounces  of  silver  a  month,  paying  for  it  with  a  new  kind  of 
legal  tender  paper.  Some  of  this  bullion  was  to  be  coined. 
The  law  was  repealed  during  the  panic  of  1893. 

The  House  and  the  Senate  could  not  agree  upon  a 
coinage  law  satisfactory  to  both  till  1900,  when  the  law 
considered  below  was  passed. 


Money  491 

600.  Paper  Money  in  our  Early  History.  —  Paper  money  Three  kinds 
has  been  used  more  than  coin  during  our  history.     It  has  °  paps'", 
been  of  various  kinds  :   (i)  that  issued  by  the  government 

on  its  credit,  (2)  that  given  out  by  the  government  instead 
of  corns  which  were  then  deposited  in  the  vaults,  and  (3) 
that  issued  by  banks  with  the  consent  of  the  government. 

In  colonial   times   the   craze    for  cheap   money  spread  The  colonies 
through  the  country  like  epidemics,  every  colony  issuing  ^"*^  *^^  ^°"" 
some  form  of  paper  at  different  times.     This   invariably 
depreciated.     During  the  Revolutionary  War  and  the  Con-  Mon^in 
federation,  Congress  and  the  state  legislatures  tried  to  make  Politics,  14- 
money  by  the  printing-press,  with  such  disastrous  results  that  3^* 
the  constitutional  convention  of  1787  forbade  the  issuance  White,  120- 
of  bills  of  credit  by  the  states,  and  placed  its  stamp  of  dis-     ^^' 
approval  upon  similar  aclion  by  the  central  government, 
though  not  forbidding  it. 

As  there  was  so  little  coin  during  the  early  national  period  Bank  notes 
and  no  government  paper,  most  of  the  business  was  done   (^789-1860). 
with  notes  issued  by  the  state  banks  or  by  the  two  national  Upton,  42- 
banks.     Those  of  the  latter  were  quite  reliable,  but  the 
former  never  gained  more  than  a  local  circulation,  and  were 
usually  far  below  par,  hampering  trade  to  a  very  great  extent. 

601.  Paper  Money  since  i860.  —  During  the  Civil  War  Thegreen- 

the  government  was  in  such  need  of  money  that  in  1862   ^^'^^^• 

and  1863  Congress  passed  three  bills  permitting  it  to  issue  White, 

$450,000,000  in  legal  tender  treasury  notes,  popularly  known   15!"'^'  ^'^  ~ 

as  "  greenbacks."     These  became  worth  so  much  less  than 

,  ,    .         ,         ,  „       .  ,.    .       ,     .  ,  ,       ,    Knox.  u.  s. 

gold  that  they  drove  all  com  out  of  circulation,  and  remained  Notes,  117- 

below  par  until  the  government  began  to  redeem  them  in   ^47- 

gold,  January  i,  1879.     They  were  at  first  looked  upon  purely  Upton,  67- 

as  a  war  measure  of  doubtful  constitutionality,  and  after  the  9^" 

war  were  retired  rapidly  till  hard  times  made  people  cry  out 

for  the  cheapest  money  they  could  get,   preferably  more 

greenbacks.      Their    constitutionality   was   denied   by   the   Supreme 

United  States  Supreme  Court  in  i860  :   but  this  decision  5'°"'^- 

*  '  '  decisions. 

was  reversed  in  the  Legal  Tender  Cases  a  year  later.     In  upton  n;?- 
Juilliardv.  Greenman  (1884),  an  almost  unanimous  court   170. 


492 


The  American  Federal  State 


Knox,  156- 
166. 

Treasury 
notes  of  1890. 
Gordon, 
Cong.  Cur- 
rency, 183- 
187. 

Gold  and 
silver  certifi- 
cates. 

Gordon, 173- 
183. 

Establish- 
ment and 
character. 


Upton,  I  Il- 
iad. 

Gordon,  151- 
172. 

White, 
Money,  406- 
418. 


The  money 

system 

rearranged. 

References  at 
end  of  chap- 
ter. 


held  that  Congress  might  issue  paper  in  time  of  peace  as 
well  as  in  war,  and  in  what  quantity  it  pleased. 

The  treasury  notes  of  1890  paid  out  for  silver  bullion 
purchased  under  the  so-called  Sherman  act  of  that  year  are 
legal  tender,  except  where  otherwise  specified  in  the  con- 
tract. 

For  many  years  we  have  had  gold  and  silver  certificates, 
which  are  issued  in  place  of  gold  or  silver  coins,  simply 
because  the  paper  is  easier  to  handle.  The  metallic  cur- 
rency is  placed  in  the  government  vaults,  and  the  substitute 
paper  is  placed  in  circulation. 

602.  The  National  Banking  System. — A  good  part  of  our 
business  is  done  with  a  form  of  paper  issued  by  banks  char- 
tered under  national  law.  The  present  national  banking 
system  is  an  outgrowth  of  the  exigencies  of  the  Civil  War. 
The  government  desired  to  find  a  market  for  its  bonds,  so 
the  Treasury  department  was  led  to  propose  that  national 
banks  be  permitted  to  issue  notes  if  they  would  buy  bonds  of 
a  slightly  greater  value  than  their  total  circulation  of  notes. 
These  notes  were  not  and  have  not  since  been  legal  tender, 
but  each  bank  guaranteed  to  redeem  its  notes  in  legal  money, 
and  the  value  of  the  bonds,  which  were  left  with  the  gov- 
ernment, was  sufficient  to  insure  payment  in  case  the  bank 
failed.  Competition  with  the  state  banks  was  avoided  by 
placing  on  the  issues  of  the  latter  a  tax  of  ten  per  cent ;  and 
general  circulation  of  the  notes  was  assured  by  the  govern- 
ment's agreeing  to  receive  them  except  in  payment  of  duties, 
and  not  to  pay  them  out  for  interest  on  the  public  debt  or 
to  redeem  its  own  paper. 

603.  The  Act  of  1900. — The  currency  law  signed  by  the 
President,  March  14,  1900,  reformed  and  systematized  the 
whole  money  system  of  the  United  States.  A  number  of  its 
provisions  deserve  enumeration,  (i)  The  gold  dollar  was 
made  the  standard  unit  of  value,  and  all  forms  of  money 
issued  or  coined  by  the  government  are  maintained  at  a  par- 
ity with  gold.  (2)  The  treasury  notes  of  1890  were  to  be 
retired  as  rapidly  as  possible,  their  place  in  circulation  being 


Money  493 

taken  by  new  silver  coins  or  silver  certificates.  (3)  Green- 
backs that  were  paid  into  the  Treasury  were  not  to  be  reissued 
except  for  gold ;  while  for  the  redemption  of  greenbacks  a 
gold  reserve  of  $150,000,000  is  to  be  maintained,  if  neces- 
sary, by  the  issue  by  the  Secretary  of  the  Treasury,  of  bonds 
bearing  not  over  three  per  cent.  (4)  In  the  office  of  the 
Treasurer  of  the  United  States  two  divisions  known  as  the 
divisions  of  issue  and  redemption  were  created  to  facilitate 
business.  (5)  New  regulations  regarding  the  denomina- 
tions of  the  different  kinds  of  paper  money  and  bank  notes 
to  be  issued  were  enacted  so  that  there  should  not  be,  for 
example,  one-dollar  bills  in  each  form  of  paper,  but  that  gold 
certificates  should  not  be  for  less  than  $20  each,  silver  cer- 
tificates only  in  denominations  of  $10  and  less,  and  the 
others  in  like  manner.  (6)  That  portion  of  the  public  debt 
which  consisted  of  three,  four,  and  five  per  cent  bonds  pay- 
able on  or  before  August  i,  1908,  might  be  exchanged  for 
thirty- year  two  per  cent  bonds.  (7)  National  banks  might 
be  organized  in  small  towns  with  a  capital  as  low  as  $25,000, 
and  were  further  permitted  to  issue  notes  to  an  amount  not 
exceeding  the  par  value  of  the  new  two  per  cent  or  other 
United  States  bonds  deposited  at  Washington.  It  will  thus 
be  seen  that  the  somewhat  chaotic  money  scheme  which 
existed  before  1900  was  simplified  and  reduced  to  a  sem- 
blance of  order  in  this  most  important  money  law. 

604.    Present  Forms  of  Money.  —  After    1902   there  will   be    Different 
seven  kinds  of  money  in  use.     (i)  The  first  includes  the  different  varie-    forms  of 
ties  of  gold  coin.     (2)  The  second  covers  the  different  forms  of  silver    currency, 
from  the  silver  dollar  to  the  ten-cent  piece,  the  silver  dime,  quarters,  and 
half-dollar  pieces  containing  a  smaller  proportion  of  pure  metal  than 
the  dollar.    (3)  The  minor  coins  are  the  nickel  five-cent  piece  and  the 
cent,     (4)  The  gold  certificates  and  (5)  the  silver  certificates  furnish 
over  one-fourth  of  the  money  in   circulation;  while   the  (6)  treasury 
notes  or  greenbacks,  and  (7)  the  national  bank  notes  complete  the 
system,  the  notes  of  1890  having  been  retired. 

Noticing  the  figures  given  below  we  shall  see  that  a  large  part  of  our    Subsidiary 
currency  depends  for  its  commercial  value  upon  the  credit  of  the  gov-    currency, 
ernment.     Only  the  gold  is  worth  as  much  as  its  face  value  indicates. 


494 


The  American  Federal  State 


Legal  tender 
quality  of 
different 
forms. 


The  silver  in  the  silver  coins  is  worth  less  than  half  what  the  coins  pass 
for  every  day.  The  notes  issued  by  the  United  States  are  maintained 
at  par  by  the  willingness  of  the  government  to  redeem  them  in  gold. 
Therefore  the  actual  value  of  these  forms  of  money  is  less  than  the  face 
value  by  an  amount  but  little  less  than  the  entire  stock  of  gold  in  the 
country.  So  that  a  large  part  of  the  value  of  United  States  currency 
is  represented  by  national  credit. 

The  gold  coins  are  legal  tender  to  any  amount,  and  the  silver  dollar 
is  unlimited  tender  unless  otherwise  specified  in  the  contract.  Sub- 
sidiary silver  coinage  is  legal  tender  to  the  amount  of  ifio,  but  the 
nickel  five-cent  piece  and  the  cent  for  only  twenty-five  cents.  United 
States  notes  are  a  legal  tender  for  the  payment  of  all  debts,  public 
and  private,  except  duties  on  imports  and  interest  on  the  public  debt. 
Certificates  of  the  different  classes  are  not  legal  tender,  but  are  at 
any  time  exchangeable  for  the  corresponding  form  of  currency. 

The  amount  of  currency  in  the  United  States,  October  i,  1900,  is 
represented  in  the  following  table :  — 


In  Circulation 

In  Treasury 

Total 

Gold  coin 

^^620,047,309  \ 
209,110,349/ 

^230,131,162 

^^1,059,288,820 

Gold  certificates  .     .     . 

Silver  dollars  .... 

71,176,265  1 
420,265,735  i 

6,907.343 

498.349,343 

Silver  certificates     .     . 

Subsidiary  silver 

79,432,193 

6,568,555 

86,000,748 

Treasury  notes  of  1890 

67,600,188 

113,812 

67,714,000 

United  States  notes  .     . 

324,506,3141 
1,820,000  / 

20,354,702 

346,681,016 

Currency  certificates     . 

National  bank  notes    . 

319.336,630 

9,079,798 

328,416,428 

Totals  .... 

^2,113,294,983 

^273.155.372 

;?2,386,450,355 

The  amount  of  the  certificates  is  included  in  the  totals  under  the 
form  of  currency  for  which  they  are  a  substitute,  and  no  account  is 
taken  of  the  deposits  made  in  the  treasury  to  counterbalance  these. 


QUESTIONS  AND  REFERENCES 

Monometallism  and  Bimetallism  (§§  593-597) 

I.  What  characteristics  must  a  good  medium  of  exchange  possess? 
Why  is  a  metal  better  adapted  for  use  as  money  than  anything  else? 
Why  must  it  be  a  precious  metal  ? 


Money  495 

2.  Can  you  suggest  anything  else  whose  value  would  be  as  station- 
ary as  that  of  gold,  i.e.  that  would  fluctuate  less  from  year  to  year  ot 
from  decade  to  decade  ?  How  would  the  price  of  wheat  do  as  a  stand- 
ard  of  value  for  deferred  payments?  the  average  price  of  all  grains? 

3.  What  was  the  market  ratio  between  gold  and  silver  a  thousand  or 
more  years  ago?  five  hundred?  fifty?  last  year?  Does  gold  seem  to 
have  "  appreciated  "  the  last  thirty  years,  i.e.  is  an  ounce  of  gold  really 
worth  more  now  than  then  ?  What  part  of  the  recent  fall  of  prices  in 
different  things  may  be  attributed  to  the  decreased  cost  through  the  use 
of  machinery?  through  improved  means  of  transportation?  To  what 
extent  may  it  be  due  to  the  appreciation  of  gold  ? 

4.  Would  gold  monometallism  be  possible  for  all  nations  in  the 
future  if  the  output  of  gold  becomes  small?  if  the  demand  for  gold 
increases  still  more,  the  gold  production  continuing  as  at  present  ?  If 
the  gold  output  should  cease,  would  we  not  be  obliged  to  go  back  to 
bimetallism? 

5.  With  the  market  ratio  between  gold  and  silver  as  at  present, 
which  metal  would  be  coined  if  we  had  free  coinage  at  a  legal  ratio  of 
16  to  I  or  20  to  1?  What  are  the  chances  that  the  increased  demand 
for  silver  by  the  United  States  alone  (the  other  nations  still  clinging 
to  the  gold  standard)  would  raise  the  price  of  silver  and  decrease  the 
market  ratio  to  20  to  i  ?  If  it  did  not,  what  would  become  of  our 
supply  of  gold  coin  ? 

Histoty  of  Currency  In  the  United  States  (§§  598-604) 

a.  On  the  law  of  1900,  consult  R.  P.  Falkner,  in  A.  A.  A.,  XVI 
(1900),  -XtZ  't  seq.;  J.  F.  Johnson,  in  P.  S.  Q.,  XV  (1900),  482-507; 
F.  W.  Taussig,  in  Quar.Jol.  Econ.,  XV  (1900),  May;  and  J.  L.  Laugh- 
lin,  xajol.  Pol.  Econ.,  VIII  (1900),  289  et  seq. 

1.  Show  how  the  Treasury  department  has  influenced  the  financial 
system  of  the  United  States.  In  what  ways  may  it  exercise  its  discre- 
tion in  regard  to  our  money  system  to-day? 

2.  Could  we  have  had  the  industrial  development  of  recent  years 
without  a  national  currency?  What  is  the  proper  place  of  paper 
money  in  a  national  system  of  finance?  What  sections  or  occupations 
have  always  favored  cheap  money  ?  Which  ones  desire  a  stable  cur- 
rency?    Explain  why  this  is  so. 

3.  Would  it  have  been  wise  to  prohibit  Congress  from  issuing  paper 
money  in  times  of  peace?  What  danger  is  connected  with  this  power 
to  make  its  paper  legal  tender? 

4.  Is  it  better  to  have  a  large  supply  of  greenbacks  in  circulation, 
or  no  government  paper  but  a  great  many  national  bank  notes?    Do 


49^  The  American  Federal  State 

we  need  a  greater  circulation  of  money  than  we  now  have?  What 
percentage  of  the  business  of  the  country  is  done  without  the  use  of 
currency  at  all? 

i.  In  what  denominations  are  the  different  coins  and  forms  of  paper 
issued  by  the  government?  What  kind  of  coin  or  paper  in  circula- 
tion represents  a  greater  value  than  any  other,  i^.  which  is  the  most 
common? 

ii.  What  proportion  of  the  money  in  the  country  is  in  the  Treasury 
of  the  United  States  ?  In  what  form  is  most  of  this  (do  not  count  the 
silver  and  gold  for  which  certificates  have  been  issued)  ?  Compare  the 
amount  of  gold  in  circulation  with  that  of  silver  (or  silver  certificates); 
with  government  paper;  and  with  national  bank  notes.  Are  silver 
certificates  or  silver  dollars  used  more  in  ordinary  business? 


CHAPTER  XXVII 

COMMERCE  AND  INDUSTRY 
Genered  References 

On  foreign  commerce  :  — 

Gide,  Principles  of  Political  Economy,  236-271.     International  trade, 

and  free  trade  or  protection. 
Lalor's    Cyclopedia.      Articles   by  Mason   on  "  Protection,"  by  D.  A. 

Wells  on  "Free  Trade,"  and  by  W.  C.  Ford  on  "Tariffs  in  the 

United  States." 
Taussig,   Tariff  History  of  the  United  States.    An  excellent  summary 

from  free-trade  standpoint. 

On  internal  commerce :  — 

Dos  Passos,  The  Interstate  Commerce  Law.   Provisions  and  explanations. 
Adams,   "A  Decade   of  Federal   Railway   Regulation,"  in  At.  Mo., 

LXXXI  (1898),  433-443- 
Adams,  Raihvays,  their  Origin  and  Problems  (1878). 
Hadley,  Railroad  Transportation  (1885).     Principles  of  the  subject 

and  methods  of  control  in  Europe  and  America. 
Johnson,  "Government   Regulation  of  Railroads,"  in  P.  S.  Q.,  XV 

(1900). 
Dixon,  F.  H.,  "  Railroad  Control  in  Nebraska,"  in  P.  S.  Q.,  XIII 

(1898),  617-646. 
Hendrick,  Railway  Control  by  Commissions  (1900).     European  and 

American  experience. 
Dixon,  State  Railway  Control,  with  a  history  of  its  development  in 

Iowa. 
Clark,  "  State  Railway  Commissions,"  in  Amer.  Econ.  Assn.,  VI  (1891). 

On  control  of  industry :  — 

Walker,  A.  F.,  "Anti-trust  Legislation,"  in  Forum,  XXVI   (1899), 

223-236. 
Clark,  The  Control  of  Trusts. 

2K  497 


49^  The  Atnerican  Federal  State 

Cook,  T!u  Corporation  Problem,  on  railways  as  weU. 
Jenks,  The  Trust  Problem,  especially  chap.  XL 

On  labor  legislation :  — 

Wright,  Industrial  Evolution  of  the  United  States, 

Stimson,  Labor  in  its  Relation  to  Law.     The  subject  in  outline. 

Stimson,  Handbook  to  the  Labor  Law.     Principles  and  details  of  the 

law  (1895). 
Belles,  Employer  and  Employee. 
In  periodical  indexes  under  Tariffs,  Free  Trade,  Protection,  Railways, 

Interstate  Commerce,  Trusts,  Labor,  Legislation,  Strikes,  etc. 

Government        605.   Trade,  Industry,  and  the  State.  —  It  is  an  idea  long 
regulation  of  Qutgrown  that  the  relations  between  a  government  and  the 

exchange  °  .  ° 

and  produc-    production  and  exchange  of  a  nation's  goods  is  one  existing 
tion.  solely  for  the  sake  of  warding  off  actual  dangers  to  trade 

and  industry.  Fortunately  or  unfortunately  it  has  been  the 
practice  for  some  centuries  at  least  to  adopt  every  possible 
means  to  foster  foreign  commerce  and  domestic  manufactur- 
ing, many  of  the  means  being  artificial  in  the  extreme,  some 
of  which  were  abandoned  at  an  early  date.  At  present  by 
far  the  most  prominent  evidences  of  government  interference 
in  the  interest  of  industrial  and  commercial  development  are 
the  systems  of  restrictive  tariffs  in  use  by  all  of  the  great 
nations  except  Great  Britain.  Others  that  deal  with  inter- 
national trade  are  reciprocity  treaties  already  considered 
(§  3i7)>  and  the  system  of  consular  offices  (§  355)  pri- 
marily for  the  purpose  of  aiding  commerce.  Regulation  of 
domestic  trade  has  not  been  very  extensively  tried,  being 
intended  rather  to  protect  the  individual  from  the  great 
carrying  companies  than  to  stimulate  exchange.  The  laws 
relating  to  industry  and  labor,  so  common  in  the  states,  are 
in  like  manner  to  keep  large  producers  within  bounds,  and 
for  the  protection  of  the  public. 
Asserted  606.    **  Free  Trade."  —  It  is  very  far  from  our  present  pur- 

merits  of  free  pQge  jQ  (Jq  more  than  enumerate  a  few  of  the  claims  put  forth 
by  the  adherents  of  protective  and  free-trade  doctrines, 
but  a  question  which  has  furnished  so  much  material  for 
political  discussion  deserves  a  word  of  comment.     It  is  safe 


Commerce  and  Industry  499 

to  say  that  the  "  free-trader  "  of  America  rarely  believes  in  a  Gide,  Pol. 
complete  abandonment  of  the  protectionist  system  which  ^^1*1^^ '■2I00- 
the  United  States  has  used  so  long,  but  desires  a  minimum  370. 
of  protectionist  duties,  the  bulk  of  the  revenue  being  ob- 
tained from  articles  of  luxury  or  things  not  produced  in 
this  country.  He  feels  that  if  it  is  a  good  plan  to  have 
free  trade  within  a  country  so  large  as  ours,  it  ought  to 
be  beneficial  to  have  it^^  restrictions  upon  that  between 
nations.  He  asserts  that  protection  is  professedly  artificial 
and  was  at  first  intended  to  be  used  only  until  our  in- 
dustries had  passed  the  "infant"  stage,  whereas  the  rate 
of  duties  has  been  increased  instead  of  lowered.  In  his 
opinion  this  has  raised  the  price  of  all  commodities  directly 
or  indirectly  affected  by  the  tariff  schedules,  has  prevented 
healthful  foreign  competition,  and  has  diminished  the  amount 
of  business  done  at  home  and  abroad. 

607.  ♦♦Protection,"  —  The  real    protectionist   looks  at  Alleged  ad- 

thines  in  an  entirely  different  light  from  the  true  free-trader.  '*^*'^*^s^^  °^ 
°  y  o  protection. 

He  beheves  that  the  disadvantages  of  production  in  a  com- 
paratively new  country,  including  the  higher  wages  paid  here  ^'*^*' 
than  in  Europe,  require  just  such  an  artificial  barrier  as  a  256-260,270, 
protective  tariff  to  keep  out  foreign  products.  He  claims  ^^* 
that  without  this  help  we  could  never  have  developed  the 
industries  we  have,  nor  could  we  have  maintained  a  rate  of 
wages  much  above  that  of  Europe.  The  tariffs  have  limited 
importations,  with  their  attendant  evils.  A  competition  we 
could  not  have  met  has  been  avoided.  He  admits  that  the 
cost  of  production  has  been  raised  and  prices  increased; 
but  even  when  he  does  not  feel  that  those  are  benefits  in 
themselves,  he  urges  that  with  low  prices  few  persons  would 
have  been  employed,  and  those  at  starvation  wages,  so  that 
in  the  general  prosperity  which  has  come  from  protection, 
high  prices  mean  less  of  a  burden  than  low  prices  would  be 
under  the  low  wages  and  less-developed  industry  of  a  non- 
protectionist  system. 

608.  Our  Early  Tariffs.  —  Although  the  right  to  levy  Tariffs  from 
duties  upon  imports  was  conferred  upon  the  national  govern-   ^789  to  1815. 


500 


The  American  Federal  State 


Taussig, 
Jai  iff  His- 
tory, 12-17. 


Tariffs  of 
1816  and 
1824. 

Taussig,   17- 
19,  68-79. 


The  tariff 
(1828  to 
1843)- 

Taussig,  79- 
114. 


Tariffs  of 
1846  and 
1857. 

Taussig,  114, 
115,  156-158. 


ment  because  of  its  value  as  a  source  of  revenue,  the  first 
tariff  under  the  Constitution  (1789)  recognized  the  need  of 
protection  of  certain  industries  likely  to  be  useful  in  time 
of  war.  The  rate  on  most  goods  was  only  five  per  cent, 
and  the  highest  was  but  fifteen,  though,  of  course,  the  heavy 
freight  charges  of  that  day  were  in  a  sense  an  additional  duty. 

The  protectionist  principle,  however,  dates  not  from  1 789, 
but  from  181 6,  when  the  duties  upon  a  large  number  of 
articles  were  raised  in  order  that  the  different  branches 
of  industry  started  under  the  embargo  and  during  the  War 
of  181 2  might  be  able  to  hold  their  own  against  the  very 
large  importations  from  Europe.  The  heaviest  duties  were 
those  on  cotton  and  woollen  goods,  which  were  twenty-five 
per  cent.  These  were  raised  to  thirty-three  and  one-third 
per  cent  in  the  tariff  of  1824,  which  also  protected  more 
fully  iron,  wool,  and  hemp. 

The  tariffs  from  1828  to  1843  were  dictated  by  other  con- 
siderations than  the  economic  needs  or  desires  of  any  sec- 
tion, chiefly  by  the  political  opinions  of  a  comparatively 
few  persons.  That  of  1828  was  a  curious  mixture  of  high 
rates  for  certain  manufactures  and  raw  materials,  with  little 
or  no  protection  for  the  opponents  of  those  in  power ;  but 
its  worst  features  were  remedied  in  1832,  though  not  to 
the  satisfaction  of  the  South  Carolinians,  who  objected  to  the 
continuance  of  what  they  claimed  was  a  sectional  measure 
especially  injurious  to  their  state  (§  177).  The  threat  made 
that  South  Carolina  would  nullify  the  existing  tariff  and 
oppose  its  enforcement,  influenced  Congress  to  pass  a  new 
law  which  provided  for  biennial  reductions  in  the  rates, 
until  in  1842  everything  was  brought  to  a  level  of  twenty 
per  cent.  But  this  was  supplanted  in  1842  by  a  new  and 
more  protective  tariff. 

Four  years  later  the  opponents  of  the  "  American  system  " 
passed  a  so-called  free-trade  measure  which  placed  duties 
of  twenty-five  or  thirty  per  cent  upon  the  articles  for  which 
protection  was  chiefly  desired.  This  remained  in  force  till 
i860,  with  some  slight  reductions  in  1857. 


Commerce  and  Industry  501 


609.   The  Development  of  a  highly  Protective  Tariff.  —  Changes  of 

theC 
War. 


With   1 860  begins  a  new  era  in  the  history  of  the  tariff,  *heCivii 


marked  by  higher  and  more  protective  duties.     In  186 1, 
before  Sumter  had  been  fired  upon,  the  Morrill  tariff  was  ^'^^^^'  ^^ 
passed,  which  established  rates  higher  than  those  formerly 
in  use,  and  designed  to  aid  particular  industries.     A  year 
later  this  was  replaced   by  another,  which,  after   constant 
amendment,  gave  way  in   1864  to  one  whose  rates  were 
much  more  than  double  those  created  in  the  Morrill  act. 
The  reason  for  this  was  twofold.     The  enormous  expendi- 
ture of  the  war  had  necessitated  the  creation  of  a  vast  inter- 
nal revenue  system  (§582),  which  included  taxes  on  every 
form  of  manufacture,  increasing  the  cost  of  products  from 
probably    one-twentieth   to  one-fifth  of  the  whole.    The 
increase  in  customs  rates  was  expected  to  equal  this  at  least ; 
but  was  also  designed  to  increase  the  revenues  and  protect 
the  manufacturers.     As  the  internal  taxes  had  covered  all  Acts  of  1872 
branches  of  manufacturing,  the  protective  rates  were  just  as  ^^^  ^^75- 
inclusive  ;  but  the  abohtion  of  the  internal  tax  after  the  war  Taussig,  179- 
did  not  lead  to  anything  more  than  a  temporary  reduction   ^^^' 
in  the  tariff  (1872),  as  the  hard  times  of  18 73-1 8 75  fur- 
nished an  excuse  to  reestabHsh  the  old  rates,  except  for  such 
non-protective  duties  as  those  on  tea  or  coffee. 

The  tariff  of  1883  was  a  concession  to  a  widespread  de-  Tariff  of 
mand  for  reduction  in  duties,  but  it  made  but  few  essential   ^^^3- 
changes  in  the  protective  system.     Agitation  for  a  tariff  for  Taussig,  230- 
revenue  only  failed  to  receive  the  support  of  the  people,  *^°' 
and  the  fifty-first  Congress  proceeded  in  1890  to  pass  the 
most  truly  protective  law  in  our  history,  commonly  known 
as  the  McKinley  bill.    Sugar  and  a  few  other  articles  were  McKiniey 
placed  on  the  free  list,  the  growers  of  the  former  being  tariff  (1890). 
aided  by  a  bounty  equal  to  the  duty  on  sugar  before  1890.  Taussig,  251- 
Rates  on  all  industrial  products  needing  protection  were      ^" 
increased,  though  the  total  revenue  was  intentionally  dimin- 
ished.   In  connection  with  the  tariff  was  a  reciprocity  arrange- 
ment by  which  we  might  favor  or  discriminate  against  nations 
that  treated  imports  from  the  United  States  well  or  ill. 


502 


The  American  Federal  State 


Gorman- 
Wilson  tariff 
(1893). 


Dingley  tarifl 
(1897). 


Principles  for 
future  tariffs. 


Government 
aid  to  rail- 
ways and 
canals. 

Hadley.  A. 
T.,  in  Lalor, 
III,  830-822. 


610.  Recent  Tariffs.  —  The  losses  sustained  by  the  Repub- 
licans after  the  passage  of  the  act  of  1890  was  held  by  the 
Democrats  to  be  an  expressed  approval  of  their  tariff  pro- 
gramme. In  1893  the  House  accordingly  agreed  upon  the 
Wilson  bill,  which  placed  most  raw  materials  upon  the  free 
list,  and  reduced  the  protective  rates  to  some  extent,  an 
income  tax  being  expected  to  furnish  sufficient  additional 
revenue  for  the  annual  deficit.  The  Senate  refused  to 
concur  with  the  House,  and  the  result  was  a  compromise 
that  was  based  upon  no  distinctive  principles,  and  which 
became  law  without  President  Cleveland's  signature. 

This  was  replaced  in  1897  by  a  new  tariff  enacted  for  the 
double  purpose  of  increasing  the  revenues  and  restoring 
something  like  the  McKinley  rates  on  raw  materials  and 
manufactured  articles,  with  a  return  to  the  method  of  reci- 
procity previously  in  use ;  but  the  new  measure  was  in  one 
respect  radically  different  from  that  of  1 890  in  its  duty  upon 
sugar. 

In  the  tariffs  of  the  future  it  is  to  be  hoped  that  the  whole 
subject  of  revision  may  be  left  as  far  as  possible  to  those 
whose  knowledge  and  disinterestedness  shall  guarantee  pro- 
tection of  the  public  welfare  against  the  irregularities  placed 
in  tariffs  ever  since  1828  for  the  benefit  of  special  persons  or 
interests.  These  tariffs,  whether  highly  protective  or  espe- 
cially for  revenue,  ought  to  be  the  embodiment  of  definite 
and  scientific  principles,  and  not  pieces  of  patchwork ;  while 
tariff  changes  should  be  no  more  frequent  nor  radical  than 
the  best  interests  of  the  public  demand,  for  uncertainty  in 
the  permanence  of  schedules  and  rates  may  be  more  disas- 
trous to  business  than  a  defective  tariff. 

611.  Government  and  Domestic  Commerce.  —  The  inland 
trade  of  the  United  States  has  been  aided  or  controlled  by 
the  state  governments  if  conducted  entirely  within  state  lines 
or  by  the  national  government  when  of  an  interstate  charac- 
ter. The  era  of  government  enterprise  in  building  of  roads 
or  canals  belonged  principally  to  the  first  half  of  the  nine- 
teenth century,  before  the  construction  of  railways  reduced 


Commerce  and  Industry  503 

the  importance  of  these  cruder  means  of  communication,  but 
still  continues  in  the  opening  of  new  waterways  by  the  states 
and  the  improvement  of  rivers  and  the  enlargement  of 
border  canals  by  the  United  States.  The  most  conspicuous 
examples  of  aid  furnished  private  parties  were  in  connection 
with  different  railways  between  1850  and  1872,  to  which 
grants  were  made  by  the  national  government  either  directly 
or  through  the  states,  the  total  area  of  the  land  given  ex- 
ceeding that  of  the  two  Dakotas  and  Nebraska.  Subsidies 
in  money  were  also  made  both  by  the  states  and  the  nation. 
P'or  example,  New  York  expended  in  the  neighborhood  of 
;$  1 0,000,000,  most  of  which  was  not  properly  secured  ;  while 
the  United  States  loaned  to  the  Union,  Kansas,  and  Central 
Pacific  railways  a  sum  of  more  than  $60,000,000,  a  part  of 
which  has  been  repaid  with  accrued  interest  and  another 
part  without  interest. 

612.   The  Beginnipgs  of  State  Control. — The  problems  Encourage- 
of  to-day  regarding  domestic  commerce  are  essentially  those  than  regula- 
of  the  railway.     So  important  have  the  railways  been  in  de-  tion. 
veloping  our  resources  of  every  kind,  particularly  in  less-set-   Hadley, 
tied  regions,  that  until  sometime  after  the  Civil  War  it  was  Railroad 
the  policy  of  all  of  the  states  to  encourage  if  not  to  aid  the  ti^^-!'^^_^^c 
extension  of  new  lines.     Railway  speculation  was  therefore 
common,  and  we  came  to  have  not  only  numerous  compet- 
ing systems  in  the  older  states,  but  extensive  ones  over  un- 
tenanted prairies.     As  the  amount  of  business  did  not  war- 
rant so  many  railways,  each  took  advantage  of  every  means 
possible  to  pay  expenses.     The  claim  was,  made  justly  by 
persons  shipping  goods  that  where  there  was  but  one  line, 
the  rates  were  exorbitant,  as  the  railway  might  charge  what 
it  pleased,  the  shippers  being  completely  at  its  mercy.     It 
was  further  asserted  that  when  lines  connected  two  cities, 
since  there  was  keen  competition  between  these  points,  the 
rates  from  one  to  the  other  were  often  below  cost,  and  that 
the  railways  made  the  loss  good  by  charging  extra  on  local 
traffic,  shippers  therefore  being  obliged  to  pay  much  more 
for  a  short  than  for  a  long  distance.     This,  of  course,  was  un- 


tion,  125-139. 


504  The  American  Federal  State 

just.  The  railways  themselves  tried  to  partially  remedy  the 
difficulty  by  forming  combinations  or  pools  of  competing 
lines,  in  which  they  agreed  upon  the  rates  to  be  charged  and 
the  amount  of  freight  each  line  should  carry.  This  was 
a  simple  measure  of  self-protection  to  avoid  "cut- throat" 
competition.  But  the  governments,  influenced  by  the  ship- 
pers, attempted  a  different  solution  of  the  problem.  State 
commissions  were  created,  often  with  power  to  fix  rates  and 
prevent  pools.  These  usually  acted  upon  the  theory  that 
the  railways  could  afford  to  carry  freight  from  any  and  all 
points  for  the  charges  at  which  it  was  carried  between  two 
points  that  enjoyed  competitive  rates.  Without  trying  to 
follow  the  direct  and  indirect  effects  of  this  control,  we  need 
notice  only  that  it  proved  in  many  cases  extremely  disas- 
trous to  the  railways,  and  hence  injured  the  communities 
served  by  them. 

Professor  Hadley,  in  his  book  on  Railroad  Transportation  (1885, 
p.  142),  called  attention  to  certain  aspects  of  railway  control  that  many 
of  the  commissions  before  and  since  have  overlooked.  He  says: 
"  The  [railway]  problem  is  comparatively  new  in  the  United  States,  It 
is  old  in  Europe ;  and  the  result  of  European  experience  has  been  to 
give  up  trying  to  prohibit  pools  and  discrimination  at  the  same  time. 
It  is  probably  not  too  much  to  say  that  no  law  has  ever  seriously  dis- 
couraged either  of  these  things  without  at  the  same  time  encouraging 
the  other.  That  this  is  so,  is  plain  matter  of  history.  It  is  not  hard  to 
explain  why  it  must  almost  of  necessity  be  so." 

Formation  of      613.  The  Interstate  Commerce  Commission.  —  One  diffi- 
*^^_^°"""'^'    culty  encountered  by  these  state  commissions  was  that  most 
of  the  lines  ran  into  other  states.    As  interstate  commerce 
was  according  to  the  Constitution  left  to  Congress,  the  com- 
Lxxxi  missions  at  first  did  nothing,  and  then  attempted  to  apply 

(1898),  433-  ^jjg  regulations  made  for  purely  state  railways  to  those  hav- 
ing interstate  commerce  as  well.  This  was  at  first  permitted 
on  the  ground  that  the  states  might  act  if  Congress  did  noth- 
ing, but  in  1886  the  Supreme  Court  of  the  United  States 
decided  that  this  state  regulation  of  interstate  trade  was  ille- 
gal.   The  next  year,  therefore,  the  Interstate  Commerce  Act 


sion 

Adams, H.C 
in  At.  Mo., 


Commerce  and  Industry  5^5 

was  passed,  which  declared  that  all  pools  affecting  interstate 
trade  were  illegal,  that  no  person  should  be  charged  more 
than  another  for  a  similar  service  nor  for  a  short  than  for  a 
long  haul,  and  provided  for  a  national  commission  of  five 
members  to  carry  out  the  act,  giving  them  power  to  investi- 
gate rates  and  pronounce  them  unjust  if  necessary.    The  Work  of  the 
commission  has  succeeded  in  introducing  a  great  many  uni-   '^'^'"'"'ssion. 
formities  in  financial  and  other  methods,  has  gathered  a  Adams,  i^/rf., 
vast  amount  of  information  that  throws  light  upon  the  rail-  435-443- 
way  problem,  and  has  at  times  been  able  to  equalize  rates ; 
but  it  has  failed  to  exercise  a  very  satisfactory  control  over 
the  roads  or  to  prevent  combinations.     Suggestions  have 
been  made  that  its  power  be  enlarged  particularly  by  giving 
it  power  to  fix  rates,  but  judging  from  the  experience  of  the 
state  commissions,  when  we  appreciate  also  the  great  terri- 
tory to  be  covered  and  the  extreme  difficulties  encountered, 
the  problem  is  much  too  complex  to  be  so  easily  solved. 

National   control   over   combinations    made   by   railway  National 
employers  or  employees  for  the  purpose  of  restraining  trade  Qf^g"^"^'  *^ 
or  conspiring  against  it  can  be  fully  exercised  under  the 
anti-trust  law  of  1890.     By  virtue  of  this  law,  several  railway 
associations  have  been  declared  illegal  by  the  courts. 

614.  State  Railway  Regulation.  —  As  with  the  subject  of  Difficuitiesin 
taxation,  but  to  a  greater  extent,  the  difficulties  of  proper  ^""^"^o'* 
railway  regulation  are  greatly  complicated  by  our  federal 
form  of  government ;  for  the  systems  of  state  and  national 
control  must  harmonize  and  work  together  if  they  are  to  be 
at  all  effective.  Further,  the  problems  of  the  railway,  like 
those  of  taxation,  the  money  standard,  the  tariff,  corpora- 
tions and  others  of  somewhat  less  importance  require  a  con- 
siderable knowledge  of  economic  laws  and  existing  condi- 
tions in  order  that  we  may  not,  as  so  often  in  the  past,  do 
more  harm  than  good  by  government  interference. 

Some  of  the  thirty-one  state  commissions   have  taken  Methods 
these  facts  into  consideration  and  have  proceeded  with  cau-  °^.^*^'^  ^°"'" 

tnissions. 

tion.     Most  of  these  have  belonged  to  the  class  of  commis- 
sions without  power  to  fix  rates  or  prevent  combinations,  and 


5o6 


The  American  Federal  State 


Hadley, 
Railroad 
Trans., 
134-145- 

Dixon,  ^ate 
Railway 
Control, 
aoi-3ii. 

Clark,  "State 
Railway 
Commis- 
sions," in 
Amer.  Econ. 
Assn.,  VI 
(1891),  No. 


State  control 

imperfectly 

developed. 


not  to  those  "  with  power."  Their  aim  has  been  to  investi- 
gate and  report,  and  the  principle  upon  which  most  of  these 
commissions  "  without  power "  proceed  is  that  a  proper 
system  of  accounting,  coupled  with  as  full  publicity  of  railway 
affairs  as  possible,  will  help  to  remedy  the  evils  in  time. 
It  is  generally  believed  that  these  commissions  have  done 
more  for  the  public  than  those  with  power  to  fix  rates,  which 
have  relied  chiefly  upon  that  means,  or  the  denial  of  the  right 
to  form  pools,  to  protect  shippers ;  but  the  more  satisfactory 
results  of  the  less  powerful  commissions  may  be  due  to  more 
favorable  circumstances  quite  as  much  as  to  different  meth- 
ods. That  some  regulation  is  essential  to  prevent  unneces- 
sary and  unwise  multiplication  of  railways,  to  avoid  the  worst 
forms  of  mismanagement,  and  to  keep  great  transportation 
companies  from  using  their  immense  power  by  sacrificing 
the  public  to  their  own  ends,  is  apparent;  but  the  exact 
methods  to  be  best  applied  by  state  and  national  govern- 
ments constitutes  one  of  the  most  dehcate  and  difficult 
problems  of  the  future. 

615.  Government  Restraint  of  Industry  in  the  Past. — The 
control  of  industrial  corporations  is  exclusively  an  affair  of 
the  states,  the  national  government  having  been  given  no 
jurisdiction  of  industry  by  the  Constitution.  In  ante-bellum 
days,  when  factories  were  so  small  that  each  had  a  local 
rather  than  a  national  market,  state  regulation  sufficed, 
though  as  a  matter  of  fact  Httle  was  attempted.  One  prac- 
tice, however,  became  common  even  then,  for  almost  all  of 
the  states  ceased  to  pass  special  acts  for  each  company  that 
wished  incorporation,  but  passed  general  incorporation  laws 
under  which  a  set  of  persons  could  begin  business  by  fulfill- 
ing a  few  requirements.  These  general  laws  have  been  made 
more  stringent  as  the  corporations  became  more  powerful 
and  have  sold  their  productions  in  wider  territories ;  but 
government  control  has  not  kept  pace  with  industrial  expan- 
sion, partly  because  incorporation  in  one  state  entitled  the 
company  to  do  business  in  all  others,  and  in  consequence 
the  states  with  lenient  laws  have  drawn  to  themselves  an 


Commerce  and  Industry  507 

undue  share  of  the  corporation  fees  and  papers,  even  when 
the  main  business  of  the  corporations  was  conducted  in 
other  states.  The  influence  of  this  and  other  practices  was 
favorable  to  the  development  of  industry  without  govern- 
ment restraint. 

616.  Corporation  Control  of  the  Present. — When  a  cor-  industrial 
poration  is  organized,  it  is  obliged  to  file  incorporation  papers  corporations, 
with  the  secretary  of  state,  and  to  pay  a  regular  fee  for  the  Ford,  w.  C, 
privileges  conferred  upon  it  by  law.    But  very  few  of  the  states  g^'J'MM- 
have  provided  any  means  for  determining  whether  the  capi-  vai,  67-83. 
tal  stock  is  paid  up  or  is  largely  fictitious,  or  have  suitable 
regulations  which  prevent  the  company  from  "  watering  "  its 

stock,  i.e.  declaring  the  amount  increased  without  putting 

in  any  more  capital.     Most  of  them,  however,  require  annual 

reports  concerning  the  amount  of  business  performed,  the 

debt  of  the  company,  and  other  details ;  but  unless  there 

is  a  uniform  system  of  keeping  corporation  accounts  and 

proper  means  for  enforcing  laws  framed  to  prevent  fraud 

and  protect  the  interests  of  the  stockholders,  the  reports 

are  of  little  or  no  value. 

Regulations  for  particular  kinds  of  corporations  are  usually  Miscella- 

more  rigid  and  better  administered.     Banks  and  loan  asso-  "^o^s  corpo- 

.     .  ,..,,.,  .        ,  .         rations, 

ciations  are  ordmanly  subjected  to  exactmg  laws  concemmg 

capital,  methods  of  making  loans,  and  reserve  funds ;  while  ^    ^^"L- 

insurance  companies  are  even  more  strictly  supervised  by  Legislation, 

state  boards  or  superintendents.     Industrial  incorporations  417-419- 

are  obliged  to  comply  with  many  factory  laws,  especially 

concerned  with  the  safety  and  comfort  of  the  employees. 

617.  Evolution  of  the  Trust.  — Within  recent  years  there  Formation 
has  been  a  marked  tendency  to  concentrate  the  capital  en-  of  trusts, 
gaged  in  industry  in  a  few  great  companies.     The  first  form  present 
was  something  Hke  this :  a  number  of  corporations,  produc-  forms, 
ing  goods  of  the  same  kind,  placed  the  management  of  their  Hadiey, 
affairs  in  the  hands  of  a  few  persons,  called  trustees,  who  ^'^'C\^\'^ 
looked  after  their  united  business.    They  were  often  thus  (1897),  377- 
enabled  to  control  a  large  part  of  the  market,  and  by  this  385- 
combination  to  produce  their  wares  more  cheaply.    As  the 


5o8 


The  American  Federal  State 


Views 
regarding 
best  method 
of  control. 

Hadley.  At. 

i1/c?.,LXXIX, 

383-335- 


courts  decided  that  these  combinations  were  illegal,  the 
same  end  was  later  attained  in  a  different  way.  The  "trust" 
of  the  present  retains  the  old  name,  but  is  in  reality  a  huge 
corporation  which  has  absorbed  the  smaller  ones.  It  may 
be  that  the  new  corporation  is  composed  only  of  those 
which  produced  exactly  the  same  class  of  articles  before, 
and  thus  removes  a  large  share  of  the  competition  in  that 
line  of  production,  or  it  may  do  more  than  this.  It  may, 
for  example,  not  only  unite  the  most  important  of  the  pre- 
viously existing  steel  works,  but  also  gain  possession  of  iron 
and  coal  mines,  and  of  the  means  of  transporting  these 
materials  to  its  various  plants.  The  immense  saving  in  the 
cost  of  production  which  can  be  made  by  permitting  each 
plant  to  turn  out  that  form  of  steel  manufacture  which  it  can 
do  to  the  best  advantage,  would  by  itself  insure  very  great 
profits  at  the  former  prices ;  but  the  removal  of  practically 
all  competition  often  gives  the  combination  opportunity  to 
charge  more  than  before  if  they  believe  that  they  can  make 
more  money  by  doing  so. 

618.  Control  of  Trusts.  — To  protect  the  people  from  the 
very  great  power  of  these  trusts  has  been  one  of  the  most 
prominent  duties  of  recent  state  governments.  The  methods 
used  have  been  as  various  as  the  views  regarding  the  trusts 
themselves.  One  class  of  persons  looks  upon  the  trust  as 
a  monster,  which  could  not  have  been  developed  without  the 
help  afforded  industry  by  the  national  and  state  govern- 
ments. They  seek  to  destroy  it  by  adverse  legislation.  A 
second  class  believes  that  the  trust  is  a  necessary  evil,  that 
its  formation  was  inevitable,  but  that  it  should  be  restricted 
and  regulated  by  every  possible  means.  The  more  con- 
servative members  of  this  class  have  faith  in  the  efficacy  of 
legislation  to  keep  the  trust  within  bounds ;  the  more  liberal 
ones  distrust  government  interference,  and  look  to  full  and 
complete  publicity  as  furnishing  the  best  solution  of  the 
trust  problem.  Still  a  third  class  thinks  that  the  trust  is  a 
public  benefit  because  it  abolishes  the  wastes  of  competition. 
As  they  are  confident  that  the  trusts  will  be  forced  for  their 


Commerce  and  Industry  5^9 

own  gain  to  lower  rather  than  raise  prices,  they  oppose  all 
legislative  restriction  even  if  they  do  not  desire  government 
aid. 

About  thirty  states  have  passed  laws  prohibiting  monopo-  Anti-trust 
lies,  and  making  restraint  upon  production  and  trade  illegal.   '^^^• 
Some  of  these,  particularly  in  the  West  and  Southwest,  have  Hadiey,  in 
gone  so  far  that  their  radical  laws  if  enforced  must  be  injuri-  ^xvi"^ ^' 
ous  to  general  business,  because  ordinary  combinations  would    (1899),  604- 
no  longer  exist.     As  Dr.  Whitten  says  ( Trend  of  Legisla-  ^^°' 
Hon  in  the  United  States,  p.  41 7)  :  "  The  trouble  seems  to  be  Walker,  A. 
that  any  law  drastic  enough  to  prohibit  the  trust  will  at  the  xxvHiSgg)', 
same  time  prohibit  many  forms  of  combination  and  organi-  257-267. 
zation  recognized  as  highly  beneficial.     Thus  far  the  labor 
organizations  have  been  the  principal  sufferers   from   the 
legislation  intended  solely  to  destroy  trusts." 

619.   History  of  Labor  Legislation.  —  Nothing  points  out  General 
more  clearly  the  direction  in  which  humanity  has  progressed  ^^"'^*="'=>'- 
during  the  last  century  or  two  than  the  changed  attitude  of   Wright, 
government  toward  the  employer  and  employee.      It  is  a   ^"^y''^''' 
long  way  from  the  regulation  of  wages  by  English  or  colonial  264-272, 
statute  to  the  attempted  suppression  so  common  now  of 
employers'  combinations  that  aim  to  limit  production  and 
fix  the  prices  of  those  products  ;  but  for  labor  it  has  been  a 
succession  of  upward  steps,  taken  with  increasing  rapidity 
as  government  has  become  more  of  the  people  and  for  the 
benefit  of  its  largest  class. 

The  restrictions  upon  labor  in  former  times,  however,  were  Specific 
comparatively  few,  and  due  more  to  custom  than  to  law.  j**^"^^'* 
Those  that  had  not  been  abolished  before  the  Revolutionary 
War  disappeared  during  the  period  following  it ;  and,  as  \^^g,.  /„  f,g_ 
trade  and  industry  came  to  involve  more  extensive  opera-   lationtoLaw, 
tions,  the  law  was  invoked  not  only  to  protect  the  employee,   ^"^  • 
but  so  far  as  might  be  to  improve  his  condition.     Freedom  Cleveland, 
of  contract  was  guaranteed,  the  right  of  mechanics'  liens  was  352-^5."   ' 
recognized,  and  a  beginning  was  made  in  shortening  the 
hours  of  labor  for  those  in  the  employ  of  the  national  and 
state  governments.     Later,  laws  were  passed  declaring  how 


510 


The  American  Federal  State 


General. 

Stimson, 
ibid.,  16-39. 


Hours  of 
labor. 

Stimson, 
Handbook  of 
Labor  Law, 
43-65. 


Factory 
legislation. 

Wright, 
Industrial 
Evolution, 
277,  278. 

Stimson, 

Handbook, 

146-153- 

Liability  of 
employers. 

Wright, 
378-382. 

Stimson, 

Handbook, 

161-166. 


many  hours  constituted  a  legal  day,  the  number  having  been 
shortened  by  subsequent  amendments. 

620.  Protection  of  the  Employee  by  the  Law  of  To-day. — 
The  law  of  to-day  aims  to  give  the  employee  every  reason- 
able advantage,  because  he  is  less  able  than  the  employer  to 
protect  himself.  The  most  common  deal  with  the  hours  of 
labor,  mechanics'  liens,  factory  regulations,  and  employers' 
liability  for  injury  received. 

Many  of  the  states  limit  the  number  of  hours  required  for 
a  day's  labor  on  public  work  to  eight  or  ten,  and  assert  that 
the  same  number  shall  be  a  legal  day's  work  for  private  par- 
ties ;  but  by  contract  any  employee  may  agree  to  work  any 
number  of  hours  he  chooses.  In  the  case  of  minors  and  of 
women,  however,  the  laws  are  more  strict,  most  states  pre- 
scribing a  minimum  age  limit  —  usually  from  ten  to  fourteen 
—  at  which  children  shall  be  employed  in  factories,  and  fixing 
the  maximum  hour  limit  per  week  for  which  women  and 
children  may  be  employed. 

Very  few  of  the  commonwealths  where  manufacturing  is 
prominent  have  failed  to  demand  that  every  company  shall 
do  certain  things  in  order  to  protect  the  health  and  safety  of 
those  in  his  employ.  Overcrowding  is  prohibited,  fire-escapes 
are  required,  and  boiler  inspection  made  obligatory.  For 
those  cities  where  sweat-shops  are  common,  statutes  seek  to 
prohibit  them  entirely  or  reduce  their  disadvantages  as  far  as 
possible. 

While  we  have  not  done  as  much  as  some  of  the  States  of 
Europe  in  holding  employers  responsible  for  accidents  to 
those  in  their  charge,  the  law  ordinarily  requires  that  every 
precaution  must  be  taken  to  prevent  accidents  to  employees 
whose  work  entails  risk  to  life  or  limb.  This  is  especially 
true  of  railways ;  but,  as  a  rule,  the  provisions  for  compen- 
sation of  persons  injured  in  the  performance  of  their  duties 
are  very  imperfect ;  and  frequently,  as  in  the  case  of  the  rail- 
way coupling-pin,  corporations  have  refused  or  neglected 
to  adopt  life-saving  devices  on  account  of  the  expense 
entailed. 


Commerce  and  Industry  5'^ 

About  three- fourths  of  the  states  now  have  labor  bureaus  State  labor 
or  special  officials  who  gather  statistics  and  information  re-  ^"'■^*'"- 
garding  the  condition  of  labor.    These  have  rendered  valuable  Wright, 
service  in  calling  attention  to  abuses  and  in  securing  ameliora-  ^^^-^To- 
tive  legislation. 

621.   Attitude  of  Government  toward  Labor  Disputes. —  strikes. 

What  is  the  attitude  of  the  government  toward  labor  unions,  vvright. 

strikes,  and  settlement  of  disputes  ?    Labor  unions  are  given  283-287, 

the  privileges  of  incorporation,  and  are  allowed  to  govern  Stimson. 

their  members  by  such  methods  as  they  see  fit  to  use.    But  ,  '*"  ^^  ' 
•'  ■'  194-220. 

if  combinations  of  labor  seek  to  dictate  to  employers,  or  to 
prevent  non-union  men  from  working,  or  conspire  against  any 
person  or  set  of  persons,  their  acts  are  held  to  be  illegal,  and 
the  parties  committing  them  are  responsible  to  the  courts. 
Strikes  are  therefore  perfectly  legal  when  they  are  attended 
by  no  feeling  of  malice  or  by  violence ;  but  a  sympathetic 
strike  —  i.e.  one  made  by  a  union  which  has  no  grievance  of 
its  own,  but  which  wishes  to  aid  an  aUied  labor  organization  — 
is  held  to  be  in  violation  of  law. 

Compulsory  arbitration  of  difficulties  between  employers  Compulsory 
and  employees  is  not  used  in  the  United  States,  but  there  *»'^"'^^**°"- 
are  many  state  boards  which  have  often  been  able  to  prevent  Wright, 

287—202 

strikes  and  to  adjust  differences. 

When  a  strike  is  of  the  nature  of  a  conspiracy  for  the  re-  Conspiracies 
straint  of  trade,  the  government  is  always  prompt  to  interfere.  ^"^  mjunc- 
If  interstate  trade  or  the  conveyance  of  the  mails  is  threat- 
ened, the  President  never  hesitates  to  use  military  force,  as  i^lrl.H 
was  noticeable  in  the  great  railway  strikes  of  1877  and  1894.  Relation  to 
Local  disorder  is  usually  suppressed  by  the  sheriffs  of  the  ^^'!^~^^' 
counties,  with  or  without  the  aid  of  the  state  governor.    The 
equity  courts  may  also  take  part  in  restoring  peace  by  issu- 
ing injunctions  against  the  leaders  of  the  conspiracy,  who 
are  thus  apprehended  and  held  for  trial ;  but  this  remedy 
is  usually  thought  to  be  worse  than  the  disease,  because  the 
power  of  enjoining  strikers  is  of  necessity  arbitrary  in  its 
nature,  and  therefore  liable  to  abuse. 


512  The  American  Federal  State 

QUESTIONS  AND   REFERENCES 
The  Tariif  (§§  605-610) 

1.  On  general  principles,  is  it  wiser  to  decrease  or  increase  the  rate 
of  protective  duties  after  the  protected  industry  passes  the  "  infant " 
stage?  Situated  as  we  are,  would  it  be  advisable  to  remove  the  duty 
altogether? 

2.  Is  there  any  essential  difference  in  the  operation  of  the  protective 
tariff  and  the  tariff  for  revenue  only  as  indirect  taxes?  Which  one  makes 
the  poor  pay  the  larger  portion  of  the  tax?     Explain  why  this  is  so. 

3.  In  your  opinion,  which  has  been  our  most  successful  tariff,  and 
for  what  reason  ? 

i.  What  was  the  amount  of  our  foreign  commerce  last  year?  Were 
the  imports  or  exports  larger  ?  What  percentage  of  the  imports  was 
admitted  free?  Of  the  articles  admitted  free,  which  represented  the 
greatest  value  ?  Of  those  paying  duty,  what  ones  were  assessed  at  the 
highest  rate,  and  what  was  the  rate? 

Control  of  Domestic  Commerce  (§§  61 1-614) 

a.  On  European  methods  of  dealing  with  the  railway  problem,  look 
up  Hadley,  Railroad  Transportation,  146-258,  and  Hendrick,  Railway 
Control  by  Commissions,  8-91. 

1.  Compare  the  method  of  control  in  England  with  that  of  the  United 
States.  In  what  respect  have  the  English  railways  more  freedom  in 
forming  combinations  than  those  in  the  United  States?  What  has 
been  their  experience  in  fixing  rates? 

2.  How  does  our  federal  system  of  government  complicate  the  rail- 
way problem?  Will  cooperation  between  the  state  and  national  com- 
missions be  necessary  for  the  best  results?  How  may  that  be  brought 
about  ? 

3.  Should  our  commissions  be  given  more  or  less  power?  If  it  is 
inadvisable  to  both  prevent  pools  and  prohibit  discrimination,  which 
would  it  be  best  to  attempt  and  which  leave  alone  ? 

i.  Who  are  the  members  of  the  Interstate  Commerce  Commission  at 
present?  If  you  have  a  state  commission,  learn  how  many  compose 
it,  how  they  are  chosen,  and  for  what  term. 

ii.  Does  your  commission  belong  to  the  ones  with  or  without  power? 
If  with  power,  how  much  does  it  legally  possess?  What  has  been  its 
success  in  remedying  the  evils  of  railway  mismanagement  ?  Of  exorbi- 
tant rates? 


Commerce  and  Industry  5*3 


Regulation  of  Industry  (§§  615-618) 

a.  Different  views  of  the  best  method  of  controlling  trusts  are  given 
by  J.  W.  Jenks,  in  Quar.  Jol.  Econ.,  XII  (1898),  461  et  seq. ;  J.  D. 
Sayers,  in  N.  A.  J?.,  169  (1899),  210  eiseq. ;  R.  Kleberg,  in  Arena,  XXII 
(1899),  191  et  seq.;  J.  D.  Forrest,  in  Amer.  Jol.  Soc,  V  (1899),  228 
e/  seq. 

1.  Should  there  not  be  some  national  regulation  of  corporations 
doing  business  in  more  than  one  state  ?  What  methods  have  been  sug- 
gested for  control  of  these  corporations?     (Jenks,  Trusts,  Appendix.) 

2.  Is  it  advisable  to  have  very  little  or  a  great  deal  of  restraint  upon 
industry?  What  might  be  stated  as  the  minimum  requirements  regard- 
ing capital  stock,  liability  of  directors,  reports,  etc.? 

3.  Why  do  not  trusts  raise  the  price  of  their  goods  indefinitely  if 
they  have  practically  no  competition? 

i.  Look  up  your  general  corporation  law,  the  laws  regarding  banks, 
railways,  insurance  companies.  What  means  of  regulation  are  pre- 
scribed? If  you  have  an  anti-trust  law,  notice  the  definition  of  a  trust 
and  the  method  of  control. 


Labor  Legislation  (§§  619-621) 

1.  Trace  the  history  of  legislation  in  favor  of  labor  during  this  cen- 
tury.   Can  it  be  said  that  the  changes  are  directly  due  to  democracy? 

2.  Are  any  of  the  labor  laws  of  to-day  a  menace  to  the  liberty  of  the 
employer?  If  so,  which  ones  and  for  what  reason  are  they  dangerous 
to  him? 

3.  What  is  meant  by  arbitration  ?  For  what  beside  labor  disputes 
has  it  been  used?    Why  should  it  be  voluntary  and  not  compulsory? 

i.  Have  you  a  labor  bureau?  If  so,  what  are  its  duties?  What  has 
it  accomplished? 

ii.  State  briefly  the  law  of  your  state  regarding  hours  of  labor, 
mechanics'  liens,  protection  of  health  of  employees,  and  strikes. 


3L 


CHAPTER  XXVIII 

FOREIGN  AFFAIRS  AND  COLONIES 
General  References 

On  foreign  affairs :  — 

Davis,  Treaties  of  the  United  States,  in  Lalor  III,  944-949. 

Curtis,   The  United  States  and  Foreign  Powers.     Describes  diplomatic 

and  consular  systems,  and  gives  history  of  foreign  relations  under 

the  different  nations. 
Schuyler,  American  Diplomacy,  "  and  the  furtherance  of  commerce." 

Gives  also  a  discussion  of  our  diplomatic  and  consular  service. 
Snow,  American  Diplomacy,  "  treaties  and  topics." 
Latane,  Diplomatic  Relations  of  the  United  States  and  Spanish  America. 

Essays  of  exceptional  value. 
Henderson,  American  Diplomatic  Questions. 
Foster,  A  Century  of  American  Diplomacy  (1776-1876).    A  scholarly, 

continuous  narrative  in  a  popular  style. 
Treaties  and  Conventions  between  the  United  States  and  Other  Powers 

(1776-1889).    A  government  publication  giving  text  of  all  treaties 

made  between  those  dates. 
Compilation  of  Treaties  in  Force  (1899). 

On  colonies :  — 

Hart,  A.  B.,  Brother  fonathan^s  Colonies,  in  Harper's,  XCVIII  (1899), 

319-328  (historical). 
Boyd,  Our  Government  of  newly  Acquired   Territory,  in  At.  Mo. 

LXXXII  (1898),  735-742  (historical). 
Becker,  C,  Law  and  Practice  of  the  United  States  in  Acquiring,  and 

Government  of  Dependent  Territory,  in  P.  S.  Q.,  XVI  (1900), 

404-420. 
Bryce,  British  Experience  in  the  Government  of  Colonies,  in  Century, 

LVII  (1898),  718-728.    Comparison  with  American  conditions. 
Bryce,  Some  Thoughts  on  the  Policy  of  the  United  States,  in  Harper'' s, 

XCVII  (1898),  609  <r/j(r^. 
Ireland,  Tropical  Colonization. 


Foreign  Affairs  and  Colonies  515 

Kidd,  The  Control  of  the  Tropics. 

Lowell,  A.  L.,  Colonial  Civil  Service.   The  requirements  in  other  coan« 

tries. 
Periodical  indexes  under  Colonies,  Annexation,  Territories,  etc. 

622.  Increased  Importance  of  Foreign  Affairs.  —  On  only  Pastisola- 
a  few  occasions,  three  of  which  we  have  considered  (§§  156,  '°"' 
169,  226),  have  any  events  connected  with  foreign  affairs  Probable 
acted  as  important  influences  upon  the  development  of  j^j^^on™" 
nationality  and  democracy  in  America,  but  a  few  of  our 

,.    ,  ...  ,  ,     ,  .,         .         .        ,  Olney,  R., 

diplomatic  victories  would  deserve  consideration  in  them-  {„  ^^  j^g., 
selves  were  they  unconnected  in  any  way  with  our  internal  Lxxxi 
growth.     In  the  past  our  relations  with  Great  Britain  have  ^gg^  ^'577- 
been  of  especial  significance,  so  that  our  negotiations  with 
that  country  occupy  a  very  prominent  place  in  our  diplo- 
matic history.    Our  relations  with  our  Southern  neighbors 
have  likewise  been  of  interest,  particularly  in  connection  with 
that  policy  familiarly  known  as  the  Monroe  Doctrine.     In 
the  future,  foreign  affairs  must  become  a  much  more  real 
part  of  us  than  they  have  been,  not  alone  because  the  in- 
crease of  our  commerce  and  improved  means  of  communica- 
tion have  brought  us  into  touch  with  other  world  powers, 
but  on  account  of  the  newly  acquired  possessions  for  whose 
sake  we  are  necessarily  interested  in  all  the  problems  of  the 
Pacific  and  the  Far  East. 

623.  The  Treaty  of  1783.  —  Our  national  career  opened  American 
with  what  may  well  be  considered  our  greatest  diplomatic  successes 
victory,  gained  in  the  negotiations  with  Great  Britain  in 

1782  and  1783.     After  Cornwallis's  surrender  at  Yorktown  j^  163, 164. 

had  practically  closed  the  Revolutionary  War,  Great  Britain 

felt  it  necessary  to  make  peace  with  the  four  nations  —  the 

United  States,  France,  Spain,  and  Holland  —  with  whom  she 

was  at  war.     She  found  the  American  commissioners  (of 

whom  Franklin,  Jay,  and  John  Adams  took  active  part  in  the 

negotiations)  had  been  instructed  to  ask  for  the  Mississippi 

River  as  a  western  boundary,  with  the  St.  Lawrence  and  the 

great  lakes  on  the  north,  and  to  demand  the  right  to  take 

fish  off  Newfoundland.    These  claims  were  deemed  extrav- 


5i6 


The  American  Federal  State 


Prevention 
of  European 
aid  to  Con- 
federacy. 

Foster, 
Century  of 
Amer.  Di- 
plomacy, 3S7- 
40a 


agant  by  England,  while  two  of  the  three,  those  referring 
to  the  western  boundary  and  the  fisheries,  were  opposed 
by  the  French  Ministry,  whose  advice  Congress  had  told  her 
representatives  to  follow.  As  our  commissioners  were  by  no 
means  ready  to  sacrifice  American  interests  to  French  am- 
bition, even  at  the  request  of  Congress,  without  consulting 
our  French  allies,  they  devoted  themselves  to  securing  from 
England  recognition  of  the  justice  of  our  claims.  In  a 
preliminary  treaty  of  peace  signed  in  1782  they  obtained 
almost  everything  for  which  they  had  asked,  giving  very  little 
in  return.  This  preliminary  treaty  was  later  accepted  by 
England  as  the  final  treaty  of  peace,  and  we  were  thus  given 
a  perfect  title  to  a  broad  domain,  to  which  through  equal 
good  fortune  other  territories  were  later  added,  until  it 
reached  from  sea  to  sea,  the  most  magnificent  empire  in  the 
world. 

624.  The  Diplomacy  of  the  Civil  War.  —  During  the  great 
conflict  between  the  North  and  the  South,  from  1861  to  1865, 
it  was  of  the  utmost  importance  to  the  Union  that  cordial 
relations  be  continued  with  Europe,  and  that  the  powers  be 
prevented,  if  possible,  from  recognizing  the  independence 
of  the  South.  We  were  fortunate  in  having  at  that  crisis 
such  men  as  Seward  for  Secretary  of  State  and  Charles  Fran- 
cis Adams  as  Minister  to  England.  At  the  very  beginning 
of  the  war  a  rupture  was  almost  caused  by  the  action  of 
Captain  Wilkes  of  the  San  Jacinto  in  stopping  the  British 
mail  steamer  Trent  in  order  to  seize  two  Confederate  com- 
missioners on  their  way  to  Europe.  They  were  almost 
immediately  given  up  on  request,  with  a  polite  but  sarcastic 
statement  that  we  rejoiced  to  see  that  England  now  disap- 
proved the  right  of  search  and  accepted  the  principle  for 
which  we  had  so  long  contended.  Later  our  representatives 
were  kept  busy  preventing,  so  far  as  lay  in  their  power,  the 
equipment  of  Confederate  privateers  in  English  and  French 
ship-yards,  and  in  counteracting  the  influences  that  were 
constantly  brought  to  bear  in  favor  of  recognizing  Southern 
independence.    The  great  victories  of  Vicksburg  and  Get- 


Foreign  Affairs  and  Colonies  517 

tysburg  (1863),  coupled  with  the  stout  adherence  of  the 
English-working  people  to  the  cause  of  freedom  that  the 
North  represented,  lessened  these  dangers,  though  American 
success  was  due  in  great  part  to  the  services  of  Adams  and 
Dayton  at  the  English  and  French  courts. 

In  the  treaty  of  Washington  (1871),  besides  many  other  Treaty  of 
questions  that  were  settled,  arrangements  were  made  that  the  Washington 
amount  of  the  damages  due  the  United  States  from  Great  award. 
Britain  for  injury  done  to  our  commerce  by  the  Alabama  and   Yo^xtx 
other  vessels  fitted  out  in  British  yards  during  the  war,  should  421-428. 
be  fixed   by  a  tribunal  of  five  members  —  one  American, 
one  English,  and  three  fi"om  other  nations —  the  treaty  itself 
laying  down  regulations  which  defined  the  duties  of  neutrals 
in  time  of  war.     The  tribunal  met  at  Geneva,  Switzerland, 
and  placed  the  award  at  $15,500,000.     The  whole  proceed- 
ing, including  the  willingness  to  frame  rules  which  would  be 
to  its  disadvantage  and  the  readiness  to  submit  such  ques- 
tions to  arbitration,  reflects  credit  upon  the  Gladstone  Min- 
istry, although  the  liberality  of  the  English  does  not  detract 
from  the  laurels  of  Secretary  of  State  Fish. 

635.   Some  Early  Applications  of  the  Monroe  Doctrine.  —  Original 

The  circumstances  which  led  to  the  now  famous  declaration  ^^o^roe 

Doctnne. 
of  President  Monroe  upon  the  relation  of  the  United  States 

to  European  interference  with  other  American  countries,  were 
briefly  set  forth  in  §  169,  and  need  not  be  repeated;  but 
what  was  intended  to  be  a  statement  of  a  temporary  pol- 
icy has  become  a  settled  doctrine  of  governmental  action, 
applied  many  times  since  1823. 

It  was  the  threatened  conquest  by  Great  Britain  of  the  Application 
district  around  the  mouth  of  the  San  Juan  River  in  Central  '"  Central 

•'  America. 

America,  over  half  a  century  ago,  that  brought  out  one  of 

the  first  protests  under  the  doctrine.     As  the  subject  of  alT  and  Foreign 

interoceanic  canal  was  at  that  time  very  interesting  to  both   Powers,  95- 

nations,  and  as  the  capital  for  such  an  enterprise  could  not  ^' 

be  obtained  in  America,  but  must  be  procured  in  Great 

Britain,  the  United  States  was  satisfied  to  make  the  Clayton- 

Bulwer  treaty  (1850),  which  prohibited  either  country  from 


5i8 


The  American  Federal  State 


The  French 
in  Mexico. 

Foster,  ibid., 
401-403. 

Lothrop's 

Seward, 

387-395- 


Monroe 
Doctrine  and 
interoceanic 
canal. 

Curtis,  U.  S. 
and  Foreign 
Powers,  iia- 
118. 

Foster,  ibid., 
461-466. 


gaining  control  of  the  territory  about  the  canal,  or  getting 
exclusive  control  of  the  canal  itself.  The  subsequent  atti- 
tude of  the  United  States  toward  this  tieaty  is  too  well 
known  to  require  comment. 

The  most  conspicuous  application  of  the  doctrine  was  in 
connection  with  the  affairs  of  Mexico  in  1866.  During  the 
Civil  War,  Napoleon  III  of  France,  under  pretext  of  collect- 
ing certain  debts,  forced  upon  the  Mexicans  an  Austrian 
prince  named  Maximilian,  who  was  maintained  as  Emperor 
of  Mexico  by  the  use  of  the  French  army.  Being  fully 
occupied  with  the  prosecution  of  the  war,  and  anxious  to 
avoid  difficulty  with  France,  the  government  at  Washington 
felt  it  unwise  to  do  more  than  refuse  to  recognize  Maxi- 
milian's government  and  mildly  protest  against  Napoleon's 
course.  After  Appomattox  the  case  was  different.  An  army 
of  observation  under  Sheridan  was  despatched  to  the  Rio 
Grande,  and  disapproval  of  French  actions  clearly  expressed. 
Finally,  on  December  10,  1865,  Secretary  Seward  sent  to 
France  a  peremptory  note,  stating  that  the  policy  of  friend- 
ship for  France  would  "  be  brought  into  immediate  jeopardy, 
unless  France  could  deem  it  consistent  with  her  interest  and 
honor  to  desist  from  the  prosecution  of  armed  intervention 
in  Mexico  to  overthrow  the  domestic  republican  government 
existing  there,  and  to  establish  upon  its  ruins  the  foreign 
monarchy  which  has  been  attempted  to  be  inaugurated  in 
the  capital  of  that  country."  After  a  little  hesitation  Napo- 
leon agreed  to  withdraw  his  troops ;  and,  when  that  was  done, 
the  Mexican  Empire  came  to  an  end,  Maximilian  being  put 
to  death. 

626.  The  Monroe  Doctrine  in  Recent  History.  —  There  has 
been  a  pronounced  tendency  throughout  the  country  during 
the  last  two  or  three  decades  to  enlarge  upon  the  original 
Monroe  Doctrine.  This  is  observable  in  the  special  message 
of  President  Hayes  (1880)  at  the  time  De  Lesseps  planned 
his  tide- water  canal  across  the  Isthmus  of  Panama.  Then 
and  under  President  Garfield,  and  more  emphatically  under 
President  McKinley,  the  administration  or  the  Senate  have 


Foreign  Affairs  and  Colonies  519 

come  out  strongly  for  a  canal  built  with  American  capital 
and  under  exclusive  American  control.  The  doctrine  has 
also  been  made  the  basis  for  official  statements  that  even 
so  remote  an  island  as  Hawaii,  at  that  time  an  independent 
monarchy,  could  not  be  permitted  to  pass  into  the  pos- 
session of  any  European  power. 

Far  more  noteworthy  than  these  was  the  new  form  assumed  The  Vene- 

by  the  doctrine  at  the  hands  of  President  Cleveland  and  *"^^*'^"" 

•'  pute. 

Secretary  Olney  (1895)  in  the  Venezuela  boundary  dispute. 

The  location  of  the  line  between  that  country  and  British   .gg^-'g 
Guiana  had  never  been  definitely  settled,  although  numerous 
surveys  had  been  made.     It  seemed  to  our  government  that  ^^  Spanish 
Great  Britain  was  endeavoring  to  seize  upon  so  much  of  the  America, 
Venezuela  territory  as  might  enable  it  to  gain  the  mouth  of  ^^^  ^ 
the  great  Orinoco  River.     Secretary  Olney  therefore  called 
the  attention  of  Great  Britain  to  the  interests  of  the  United 
States  which  were  involved  in  the  question,  and  showed  how 
the  Monroe  Doctrine  applied  to  the  case.     When  Lord  Salis- 
bury refused  to  accept  Olney's  statement  of  the  controversy 
as  being  true  to  the  facts,  and  denied  that  the  doctrine 
applied.  President  Cleveland  sent  Congress  a  message  in 
which  he  not  only  fully  supported  Olney's  contentions,  but 
claimed  that  the  United  States  should  interfere  to  determine 
where  the  boundary  line  really  ran.     For  that  purpose  he 
suggested  a  commission  to  be  selected  by  the  President. 
The  commission  was  duly  appointed,  but  before  it  was  ready 
to  report,  Great  Britain  agreed  to  leave  the  whole  matter  to 
an  impartial  board  of  arbitration. 

Quite  a  number  of  our  eminent  pubhcists  and  statesmen  Objections 
believed  that  this  was  a  new  and  dangerous  interpretation  Injg^'^reta. 
of  the  Monroe  Doctrine ;   but  it  has  been  quite  generally  lions  of 


approved  as  in  line  with  the  original  idea  of  protecting 
interests  of  the  United  States. 


Monroe 
Doctrine. 

Burgess,  J. 

627.  The  Protection  of  Neutral  Rights. — The  influence  ^J" "':  f; 
exerted  by  the  United  States  in  favor  of  the  rights  of  neutrals  is  worthy    aoj_22i 
of  brief  consideration.     As  early  as  1785   our  treaty  with  Prussia  had 
contained  clauses  declaring  that  in  case  one  of  the  two  countries  was 


520 


The  American  Federal  State 


Efforts  made 
in  early 
history. 

Schuyler, 
Amer.  Di- 
plomacy, 
367-380. 


Influence  of 
our  neutrality 
Jaws. 

Foster, 
154-157. 
Attempt  to 
have  private 
war  at  sea 
abolished. 

Schuyler, 
ibid.,  380- 
398. 


Declaration 
of  Paris. 


Two  classes 
of  colonies. 

Boyd,  in 
At.  Mo., 
LXXXII 

(1898),  735- 
742. 


at  war,  the  vessels  of  the  other  might  trade  with  the  belligerent  as  in 
time  of  peace,  free  ships  making  free  goods;  i.e.  if  France  and  Prussia 
were  at  war,  French  goods  in  an  American  ship  could  not  be  captured 
by  Prussia,  though  contraband  of  war  might  be  detained.  These  pro- 
visions were  more  liberal  than  those  even  now  recognized  by  inter- 
national law,  and  vastly  in  advance  of  the  practice  at  that  time  which 
permitted  one  belligerent  to  seize  property  of  the  other  anywhere  on 
the  seas. 

The  Proclamation  of  Neutrality  issued  by  Washington  (1793),  with 
the  laws  of  1794  and  1818  defining  the  duties  of  neutrals,  furnished  not 
alone  an  example  of  firm  and  moderate  action  under  trying  circum- 
stances, but  a  model  copied  by  older  nations  wishing  to  declare  their 
neutrality. 

Beginning  with  1823  the  United  States  made  an  earnest  attempt  to 
gain  the  consent  of  Europe  to  the  abolition  of  privateering;  but  each 
power  refused  to  act  unless  all  of  the  others  were  willing,  which  they 
were  not.  When  the  question  became  again  prominent  at  the  time  of 
the  Crimean  War,  and  France  and  England  showed  a*  disposition  to 
disapprove  of  privateering,  as  well  as  to  recognize  the  rights  of  Russia's 
goods  on  neutral  ships,  our  government  took  occasion  to  urge  that  the 
nations  unite  in  prohibiting  all  private  war  at  sea.  To  this  they  would 
not  consent;  but,  in  the  declaration  of  Paris  (1856),  those  that  had 
been  at  war  adopted  four  resolutions  which  mark  the  beginning  of  a 
new  epoch  in  the  rights  of  neutrals.  These  were  afterward  accepted 
by  many  other  countries,  but  not  by  the  United  States  ;  first,  because 
they  did  not  go  far  enough  ;  and  second,  because  their  acceptance  by 
the  President  would  not  be  binding  upon  Congress. 

The  declaration  of  Paris  was  as  follows :  — 

"  First,  Privateering  is  and  remains  abolished. 

"  Second,  The  neutral  flag  covers  enemies'  goods,  with  the  exception 
of  contraband  of  war. 

"  Third,  Neutral  goods,  except  contraband  of  war,  are  not  liable  to 
capture  under  an  enemy's  flag. 

"  Fourth,  Blockades  to  be  binding  must  be  effective,  that  is  to  say, 
maintained  by  a  force  really  sufficient  to  prevent  access  to  the  coast  of 
the  enemy." 

628.  Our  Experience  with  Colonies.  —  The  territory  which 
was  acquired  by  the  United  States,  or  controlled  by  Congress 
before  1867,  consisted  of  great  areas  practically  uninhabited, 
and  lying  directly  west  of  the  states  in  the  path  of  advancing 
migration  from  the  older  sections  of  the  country.  For  dif- 
ferent districts  of  this  vast  region  it  was  customary  to  have 


Foreign  Affairs  and  Colonies  521 

two  classes  of  territorial  government  (the  temporary  and  the  Hart,  in 
permanent)  adapted  to  the  different  stages  in  their  develop-  xcvni' 
ment.    The  government  of  each  district  was  considered   (1899),  319- 
temporary  until  the  population  warranted  the  organization  328. 
of  a  regular  government.     Temporary  governments  were 
principally  distinguished  from   permanent   ones  by  a  total 
lack  of  self-government ;  for  the  organized  territories  were 
always  permitted  to  choose  one  or  both  houses  of  the  legis- 
lature, the  governor  and  the  judiciary,  however,  being  ap- 
pointed by  the  President. 

In  section  311  we  considered  the  amount  of  self-gov-  Semi- 

crnment  permitted  in  the  organized  territory  of  the  present  colonial 
,  ,  ,   ,  .  ,  ,  character  of 

day,  and  noted  how  promment  a  place  the  government  at  organized 

Washington  occupied  in  the  control  of  such  a  territory,  territories. 
That  account  may  be  taken  as  showing  how  organized  terri- 
tories have  been  governed  in  the  past  as  well  as  within  re- 
cent times,  although  there  is  more  local  autonomy  in  the  lands 
under  national  supervision  to-day  than  formerly.  But  even 
in  these  organized  territories  more  control  is  exercised  from 
Washington  now  than  was  exercised  from  London  over  Con- 
necticut and  Rhode  Island  before  the  Revolutionary  War ; 
that  is,  our  territorial  system  has  always  involved  certain 
semicolonial  relations. 

During  the  period  of  "temporary"  government,  more-  Colonial 
over,  the  relation  between  the  territory  and  the  nation  was  a  character  of 

.  T11J  jjii        unorganized 

colonial  one,  pure  and  simple.     In  the  lands  ceded  by  the  territories, 
states  under  the  Confederation,  the  districts  were  at  first 
under  the  charge  of  a  governor  and  judges  selected  by  the 
President.     The   temporary  government  of  the   Louisiana 
purchase  was  of  the  nature  of  a  military  despotism,  while 
from  1805  to  18 1 6  the  people  in  that  portion  north  of  the 
33d  parallel  were  allowed  less  share  in  the  election  of  public 
officials  than  those  of  Massachusetts  in  colonial  times.     For  Alaska. 
Alaska  there  has  never  been  any  attempt  to  establish  a  regu-    ^^^^^^  ^  S 
lar  government,  not  even  a  governor  being  appointed  until  imperial 
1884.     This  official  has  no  regular  corps  of  assistants,  and  ^*^'><^''<^' 
although  there  have  been  judges  for  some  time,  there  is  even 


522 


The  American  Federal  State 


Conditions 
affecting  the 
character 
of  new  colo- 
nial govern- 
ments. 


Some  phases 
of  the  task  of 
supervision. 


yet  no  legislature,  the  laws  of  Oregon  applying  where  needed, 
and  when  they  do  not  conflict  with  national  law. 

629.  Problems  in  organizing  Colonial  Governments. — 
The  policy  pursued  toward  the  territories  acquired  in  1898 
will  doubtless  be  different  from  that  we  have  used  in  regard 
to  the  land  lying  between  the  Mississippi  and  the  Pacific, 
because  the  population  of  these  new  possessions  is  compara- 
tively dense,  and  is  entirely  lacking  in  the  political  training 
of  English-speaking  peoples.  It  has  been  necessary,  how- 
ever, as  in  the  case  of  our  earlier  acquisitions,  to  arrange 
temporary  governments  for  which  our  regular  territorial 
system  did  not  furnish  any  suitable  models.  The  commis- 
sion of  five  members  who  were  given  sole  control  of 
civil  affairs  in  the  Philippines  will  undoubtedly  be  displaced 
by  an  entirely  different  type  of  colonial  government ;  but  the 
permanent  governments  to  be  established  in  Hawaii  and 
Porto  Rico  will  probably  be  similar  in  some  respects  to  the 
temporary  governments  created  for  those  districts.  Among 
the  questions  which  must  be  definitely  settled  in  arranging 
a  permanent  organization  for  these  colonies  is,  first  of  all, 
the  one  whether  the  organization  shall  be  a  means  of  pre- 
paring the  colony  or  territory  for  statehood,  or  whether  it  is 
the  intention  to  preserve  indefinitely  a  colonial  relation 
between  the  United  States  and  the  district.  In  either  case 
the  restrictions  to  be  placed  upon  the  suffrage  and  the  part 
taken  by  these  voters  in  local  government,  and  in  the  elec- 
tion of  some  or  all  of  the  members  of  the  colonial  legisla- 
ture, will  furnish  abundant  material  for  constructive  states- 
manship. Considering  the  different  conditions  existing  in 
these  new  island  possessions,  it  is  extremely  improbable  that 
it  will  be  considered  wise  to  allow  the  same  degree  of  local 
autonomy  in  the  Philippines  as  in  Porto  Rico,  while  the 
suffrage  will  no  doubt  be  much  more  hberal  in  the  latter 
than  in  the  former. 

630.  Problems  of  Colonial  Control. — The  degree  of  the  con- 
trol exercised  by  Congress  over  the  colonies  must  depend  to 
some  extent  on  the  decisions  of  the  Supreme  Court  regard- 


Foreign  Affairs  and  Colonies  5^3 

ing  the  limitations  which  the  Constitution  places  upon  the 
national  legislature  in  its  dealings  with  the  colonies.  How- 
ever, the  principal  difficulties  to  be  overcome  in  creating 
such  a  government  as  will  best  protect  the  interests  of  the 
nation  and  the  subject  peoples,  in  establishing  a  system  of 
internal  taxation  that  will  prove  most  profitable  and  least 
burdensome,  and  in  properly  administering  such  a  body  of 
law  as  each  colony  may  need,  are  not  constitutional  but 
practical.  Emphasis  has  rightly  been  placed  upon  the  need 
of  having  some  national  bureau  which  shall  take  sole  charge 
of  colonial  affairs,  and  of  securing  an  honest  and  competent 
civil  service,  in  order  that  the  plans  for  governing  the  colo- 
nies may  not  fail  through  faulty  administration,  but  be  made 
the  more  efficient ;  yet  these  are  only  two  of  the  necessities 
of  the  situation,  for  success  cannot  be  obtained  through  good 
service  under  suitable  supervision  if  the  method  of  dealing 
with  social,  political,  and  fiscal  problems  is  wrong.  We 
shall  need  all  of  the  help  that  can  be  obtained  from  our 
own  experience,  and  the  more  extended  experiments  of 
European  nations,  but  will,  of  course,  be  compelled  to 
work  out  the  problems  of  control  according  to  the  condi- 
tions of  the  future. 

QUESTIONS  AND  REFERENCES 
Some  ChapterB  of  American  Diplomacy  (§§  622-627) 

a.  The  treaty  of  1783  is  considered  in  Fiske,  Critical  Period,  1-49; 
Foster,  Century  of  Amer.  Diplomacy,  40-72 ;  Pellew,  Life  of  John  Jay, 
114-228;  Jay,  J.,  in  Winsor's  Narr.  and  Crit.  Hist,  of  Amer.,  VII, 
89-114;  Bigdow's  Franklin,  Pt.  Ill,  chaps.  III-V. 

b.  Oil  the  diplomacy  of  the  Civil  War  see  J.  Schouler  in  A''.  A.  R., 
CII,  446  et  seq.;  Aldis,  in  N.  A.  R.,  CXXIX,  342  et  seq.;  Woolsey, 
in  N.  A.  R.,  CXI,  257  et  seq.;  Adams,  Charles  Francis  Adams; 
Lathrop,  W.  II.  Seward,  292-387 ;  Davis,  Fish  and  the  Alabama 
Claims. 

e.  On  the  French  occupation  of  Mexico  consult  Latan£,  United 
States  and  Spanish  America,  chap.  V ;  F.  Bancroft  in  P.  S.  Q.,  XI 
(1896),  30-43;   Stevensdn,  With  Maximilian  in  Mexico. 


524  The  American  Federal  State 

1.  What  conditions  especially  affected  American  diplomatic  success 
in  1783?  Would  it  have  been  better  had  the  American  commissioners 
sacrificed  some  of  their  claims  and  made  a  commercial  treaty?  Give 
the  history  of  our  struggle  for  commercial  rights  and  privileges. 

2.  Why  does  the  Monroe  Doctrine  represent  a  wise  national  policy? 
What  are  the  dangers  from  a  too  extensive  application  of  it  ?  What  is 
its  status  at  present  (Latane,  pp.  266-273,  284-289)? 

3.  What  have  been  our  greatest  diplomatic  mistakes?  Our  greatest 
successes?  What  is  the  prospect  that  "to  conduct  foreign  affairs  with 
skill  we  must  sacrifice  to  some  extent  the  democratic  idea  of  govern- 
ment by  the  people  and  the  federal  idea  of  division  of  power"  (§  254)? 

The  Government  of  Colonies  (§§  62S-630) 

a.  On  colonial  government  and  problems,  compare  Becker,  C,  in 
P.  S.  ^.,XVI  (1900),  404-420;  Burgess,  J.  W.,  in  P.  S.  Q.,  XV  (1900), 
381-398;  Bryce,  J.,  in  Harper^s,  XCVII  (1898),  609  et  seq.;  Worces- 
ter, D.  C,  in  Century,  LVI  (1898),  873-879. 

1.  Is  there  any  likelihood  that  any  of  our  newer  possessions  may  be 
admitted  to  the  Union  as  states?  Give  objection  to  keeping  Hawaii 
permanently  in  a  colonial  relation;  to  making  it  a  state. 

2.  What  grades  of  colonial  government  has  Great  Britain?  How 
are  her  colonial  officials  trained?  Tell  something  about  the  organiza- 
tion of  the  British  colonial  office. 

3.  Will  we  take  more  or  less  part  in  the  affairs  of  the  East  than  we 
have?  Should  it  be  our  policy  to  acquire  other  possessions  bordering 
on  the  Pacific  ?  What  will  be  the  probable  effect  of  permanent  colo- 
nialism upon  our  national  government?  upon  the  future  of  democracy? 

i.  Describe  the  present  government  of  Arizona;  of  Hawaii;  of  the 
Philippines.  Give  the  suffrage  requirements  of  each.  Who  is  at  the 
head  of  each  government?  What  rights  of  local  self-government  are 
accorded  to  each? 


CHAPTER  XXIX 

THE  DUTIES  OF  CITIZENSHIP 

631.  The  Twin  Virtues  of  Citizenship. — Through  the  Story  from 
writings  of  Plutarch  there  has  come  down  to  us  the  story  of  P'"^"''' 
an  old  man  who,  desiring  to  witness  the  Olympian  games, 

was  searching  for  a  seat  among  the  crowd  of  spectators  which 
amused  itself  by  making  fun  of  him.  He  came  finally  to  a 
body  of  Spartans,  most  of  whom  rose  at  once  and  requested 
him  to  be  seated.  Thereupon  the  assembly  applauded,  and 
the  old  man  was  led  to  exclaim,  "  Alas  !  all  the  Greeks  know 
what  is  right,  but  only  the  I-acedsemonians  practise  it." 

The  words  that  were  spoken  of  the  Lacedaemonians  can  Knowledge 
fitly  be  applied  to  all  who  possess  the  twin  virtues  of  citizen-  ^^^  action 

'  '^^  ^  twin  CIVIC 

ship — knowledge  and  action — for  the  two  are  inseparable  if  virtues, 
they  are  to  become  useful  in  the  possession  of  any  citizen. 
It  is  not  enough  that  we  should  be  fully  informed  regarding 
the  structure  and  operation  of  our  political  system  and  be 
able  to  talk  learnedly  of  the  great  events  in  our  constitu- 
tional history ;  we  must  be  prepared  to  give  our  time  and 
our  talents  to  whatever  civic  tasks  our  country  may  call  us, 
even  when  they  involve  a  drudgery  that  may  be  distasteful. 

632.  The  Knowledge  that  makes  for  Good  Citizenship. — By  An  intelligent 
knowledge  is  meant  more  than  an  abundance  of  information   sk)n^7our 
relating  to  isolated  historical  events  or  single  departments  of  political 
government ;  it  refers  rather  to  an  intelligent  comprehension  ^y***"*  »"<* 
of  the  course  of  development  during  our  previous  history ;   conditions, 
together  with  a  reasonably  full  knowledge  of  the  real  char- 
acter of  our  federal  union,  of  the  organization  and  powers  of 

the  national,  state,  and  local  governments ;  supplemented  by 
a  fairly  definite  appreciation  of  the  conditions  that  exist 

525 


two. 


526  The  American  Federal  State 

around  us,  of  the  problems  that  confront  us,  and  of  our  own 
duty  and  limitations  under  the  circumstances  —  all  of  these 
fitted  into  a  unified  and  organized  whole  in  which  the  rela- 
tion of  each  part  to  every  other  is  recognized  and  under- 
stood. Such  an  ideal  can  of  course  be  realized  in  the  lives 
of  very  few  men  who  have  had  extended  opportunities  for 
study  and  observation,  but  it  should  be  the  goal  toward  which 
we  are  all  striving.  It  is  much  deeper  than  any  knowledge 
that  can  be  obtained  from  books,  valuable  as  that  may  bo  in 
presenting  a  few  fundamental  truths ;  for,  unless  it  gives  a 
real  insight  into  the  character  of  men  and  the  motives  which 
prompt  them,  it  will  be  knowledge  without  comprehension — 
learning  without  wisdom. 
Insepara-  633.   Knowledge  and  Action  as  Twin  Virtues.  —  Knowl- 

bihty  of  the  ^^g^  ^^  itself  is  Static,  to  become  a  true  virtue  of  citizenship 
it  must  be  joined  to  its  twin,  action,  and  be  made  dynamic. 
Otherwise  the  scathing  though  veiled  condemnation  which 
the  old  Greek  applied  to  his  fellow-countrymen  may  with 
equal  truth  be  used  of  us.  Instead  of  an  extensive  knowl- 
edge being  a  sufficient  excuse  for  not  participating  in  the 
duties  of  citizenship  on  the  ground  that  it  is  a  substitute  for 
civic  activity,  it,  on  the  contrary,  creates  an  obligation 
which  we  cannot  escape.  Like  a  mediaeval  knight,  the 
modem  American  citizen  must  remain  faithful  to  the  motto, 
"  noblesse  oblige"  though  now  it  is  a  nobility  of  manhood 
and  not  one  of  birth  which  compels  us  to  rise  to  the  best 
that  is  in  us.  We  hear  it  said  sometimes  that  the  best  citi- 
zens take  least  part  in  politics,  but  the  expression  is  a  con- 
tradiction of  terms.  The  very  idea  of  citizenship  is  one  of 
reciprocal  obligation  between  the  State  and  its  members,  and 
no  social  position  or  business  standing  can  entitle  any  man 
to  be  called  even  a  good  citizen  who  neglects  his  civic  duties. 
But  let  us  not  err  in  the  other  direction,  and  imagine  that 
the  best  citizen  is  the  one  who  is  most  prominent  in  the  noise 
and  furore  of  political  campaigns.  He  is  not  likely  to  come 
nearest  our  ideal  of  citizenship  whose  sole  claim  to  this  dis- 
tinction is  his  conspicuous  efforts  every  four  years  to  "  save 


The  Duties  of  Citizenship  $27 

the  country."  True  action,  as  we  may  well  learn  from 
Mother  Nature,  is  more  often  than  not  silent  in  its  workings. 
Bluster  and  indolence  alike  have  no  place  in  it.  It  is  earn- 
est without  being  demonstrative,  continuous  and  not  spas- 
modic. Each  man  who  according  to  his  opportunity,  not 
unmindful  of  the  lesser  and  more  common  duties,  works  for 
the  good  of  his  country  in  the  way  for  which  his  tastes  and 
capacity  fit  him,  has  earned  the  title  of  a  loyal  citizen. 

As  knowledge  without  action  is  vanity,  so  is  action  with-  Uselessness 
out  knowledge  folly.     The  old  though  cruel  proverb  about  °it^,ou°t" 
good  intentions  expresses  a  truth  that  should  not  be  over-  knowledge, 
looked  even  by  those  well-meaning  persons  who  carry  out 
their  intentions,  but  in  ignorance.     Enthusiasm  is  a  powerful 
social  force  when  rightly  used  ;  but,  if  coupled  with  bigotry, 
or  narrowness,  or  selfishness,  may  yet,  as  has  so  often  been 
the   case,   menace   both   liberty   and   order,   and   produce 
results  that  are  dangerous  to  the  greatest  good  of  the  State 
and  society. 

634.  Analogies  from  Experience.  —  Our  country  is  con-  Value  and 
stantly  called  upon  to  solve  problems  that  are  in  many  re-  ^'""^at'o"* 
spects  similar  to  those  of  the  past,  but  which  involve  new  analogy, 
elements,  and  which  arise  under  new  conditions.  If  we 
notice  carefully  the  most  successful  solutions  reached  by  our 
ancestors,  as  in  the  framing  of  the  national  Constitution,  we 
can  scarcely  fail  to  be  impressed  with  the  ways  in  which  they 
utilized  those  political  experiences  which  had  stood  the  test 
of  time,  not  copying  slavishly  after  earlier  statesmen,  and  yet 
not  breaking  with  the  past  except  in  adapting  their  work  to 
needs  which  formerly  had  no  existence.  Our  own  duty  in 
regard  to  questions  of  to-day  requires  that  we  be  pre- 
pared to  do  as  they  did  ;  to  break  fearlessly  from  tradition 
when  the  occasion  demands ;  and  yet  continue  unbrokenly 
the  development  which  has  marked  previous  decades,  coun- 
teracting so  far  as  we  can  its  evil  tendencies,  and  infusing 
into  its  latent  possibilities  for  good  a  new  life  and  spirit. 
The  principles  of  political  growth  are  the  same  now  as  then, 
and  would  be  found  but  few  in  number  could  we  but  see 


528 


The  American  Federal  State 


The  average 
citizen  and 
civic  prob- 
lems. 


Political  ills 
are  growing 
less  numer- 
ous. 


more  clearly.  For  that  reason  the  changes  of  the  present 
are  very  much  like  those  of  previous  times,  but  only  in  a 
general  way,  and  never  in  particulars  does  history  repeat  it- 
self. Historical  analogy  has  therefore  the  highest  value  if 
used  with  great  care,  though  it  never  furnishes  models  for 
indolent  workmen. 

To  most  of  us  the  civic  duties  relating  to  policies  and 
problems  of  the  future  do  nof  require  that  we  propose  solu- 
tions, but  merely  that  we  approve  or  disapprove  those  which 
abler  minds  consider  suitable.  It  is  not  only  at  the  polls 
that  the  feelings  of  the  nation  may  make  themselves  felt,  but 
in  the  potent  though  silent  influence  of  public  sentiment ; 
for  in  the  long  run  the  policies  of  a  government  like  ours  are 
moulded  by  the  real  desire  or  by  the  indifference  of  the 
average  citizen. 

635.  The  Injustice  of  Pessimism.  —  We  shall  be  unable  to 
make  the  most  of  the  opportunities  that  come  to  us  if  we 
assume  the  duties  of  citizenship  in  a  spirit  of  pessimism. 
From  the  standpoint  of  citizenship,  pessimism  is  wrong  not 
only  because  it  deadens  activity,  but  because  it  is  ground- 
less. There  are,  to  be  sure,  many  virtues  which  were  promi- 
nent a  century  or  two  ago  that  are  uncommon  to-day. 
Times  have  indeed  changed,  yet  not  for  the  worse.  Those 
halcyon  days  in  the  heroic  period  of  American  history  which 
drew  to  the  front  so  many  men  of  superior  ability,  do  not  on 
close  examination  compare  very  favorably  with  those  in  our 
own  memory.  Were  the  political  and  constitutional  ques- 
tions now  relatively  as  important  as  those  that  commanded 
the  attention  of  Washington,  Hamilton,  Jefferson,  and  Mar- 
shall, there  is  little  doubt  that  men  of  genius  would  be 
attracted  to  politics  rather  than  to  some  more  promising 
line  of  employment.  But  even  as  it  is  we  cannot  find  in  the 
last  twenty  years  of  the  nineteenth  century,  scenes  more  dis- 
graceful than  history  records  in  the  last  two  decades  of  the 
eighteenth.  The  former  are  flaunted  in  our  faces,  the  latter 
almost  buried  in  oblivion ;  yet  even  the  deadening  effect  of 
Time  cannot  erase  them.    What  was  the  strife  between  Blaine 


The  Duties  of  Citizenship  529 

and  Conkling  to  the  Hamilton-Adams  feud,  from  which  the 
Federalist  party  never  recovered  ?  Where  can  we  find  party 
enmity  so  bitter  as  in  the  administration  of  Washington,  the 
most  maligned  of  Presidents  ?  Where  shall  be  encountered 
stronger  prejudices,  more  local  selfishness,  than  during  the 
Revolution  and  under  the  Confederation,  or  a  more  intense 
spirit  of  hatred  than  that  shown  the  Tories  after  inde- 
pendence was  established?  But  why  multiply  illustrations? 
Enough  has  been  said  to  show  that  even  in  the  days  of 
simple  life,  when  political  ills  should  have  been  less  numerous 
and  less  noticeable,  there  were  faults  with  the  virtues.  While 
we  have  more  than  enough  of  our  own,  it  can  be  said  with- 
out fear  of  contradiction  that  the  general  standards  of  public 
life  and  morahty  are  higher  than  they  were  then,  and  will  be 
higher  in  a  hundred  years  than  they  are  at  present.  The 
civic  conscience  is  far  from  being  fully  awakened,  but  is 
more  active  than  it  was  a  few  decades  ago.  The  decalogue 
and  the  golden  rule  have  all  too  small  a  place  in  public  life ; 
but  there  is  no  less  honesty  and  integrity  among  public 
servants  than  in  the  days  of  our  fathers;  while  among  the 
common  people  there  is  more  intelligence,  less  prejudice, 
deeper  sympathy  for  the  oppressed,  in  short,  a  truer  adhe- 
rence to  the  principles  of  justice  and  righteousness  proclaimed 
by  the  great  Teacher.  As  Professor  Moses  so  forcefully 
expresses  it,  "  Humanity  is  marching  steadily  uphill." 

636.  Patriotism.  —  What  is  patriotism  ?  What  does  it  The  nature 
include  ?  It  may  be  defined  as  devotion  to  the  best  inter-  of  patriotism, 
ests  of  one's  country.  It  is  a  thing  of  peace  as  well  as  war. 
Whatever  the  nation  needs  that  we  may  do,  patriotism 
demands.  Subordination  of  personal  wishes  to  the  general 
welfare  is  necessarily  one  of  its  requirements,  for  the  good  of 
all  is  before  that  of  any  individual.  However,  it  should 
never  be  conceived  in  a  spirit  of  narrow  national  pride.  We 
may  not  proclaim  with  F^nelon  that  we  are  citizens  of  the 
whole  world,  but  we  should  remember  that  true  patriotism 
will  not  in  its  zeal  overlook  the  rights  of  humanity  beyond 
our  own  borders.      Not  a  great  while  ago  allegiance  to  a 


530  The  American  Federal  State 

state  was  held  to  be  above  that  to  the  nation  by  many  of 
those  who  helped  to  found  this  republic.  History  has  since 
decided  that  loyalty  to  a  state  must  yield  to  national  loyalty ; 
and,  although  History  is  not  likely  to  decide  soon  that  loyalty 
to  a  nation  is  below  that  to  a  great  World  State,  nevertheless 
there  is  danger  that  we  may  fail  to  do  what  is  best  for  our 
own  beloved  land,  because  in  our  enthusiasm  we  make  the 
mistake  of  thinking  that  our  country,  whether  right  or  wrong, 
must  be  unswervingly  upheld,  when  no  national  honor  but 
the  rights  of  others  are  involved.  On  the  other  hand,  care 
should  be  taken  not  to  minimize  the  value  of  constant  and 
earnest  allegiance  to  the  United  States  and  all  that  our 
flag  represents.  The  pathetic  tale  of  Edward  Everett  Hale, 
entitled  "  The  Man  without  a  Country,"  teaches  a  lesson  that 
should  come  home  to  all  who  lack  not  so  much  in  patriotism 
as  in  interest.  With  hearts  full  of  gratitude,  and  pride  in  the 
land  that  gave  us  birth,  let  us  take  to  ourselves  that  noble 
sentiment  in  which  Abraham  Lincoln  summoned  his  fellow- 
citizens  to  a  higher  plane  of  civic  duty  in  the  crisis  of  '65, 
and  "with  malice  toward  none,  with  firmness  in  the  right, 
as  God  gives  us  to  see  the  right,  let  us  strive  on  to  finish  the 
work  we  are  in." 


APPENDICES 


APPENDICES 

APPENDIX   A 

THE  ARTICLES  OF  CONFEDERATION 

Articles  of  Confederation  and  Perpetual  Union  between  the  States 
of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and 
Providence  Plantations,  Connecticut,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina  and  Georgia. 

Article  /.  —  The  style  of  this  Confederacy  shall  be,  "  The 
United  States  of  America." 

Article  II.  —  Each  State  retains  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right  which  is 
not  by  this  Confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled. 

Article  III.  —  The  said  States  hereby  severally  enter  into  a 
firm  league  of  friendship  with  each  other,  for  their  common 
defense,  the  security  of  their  liberties,  and  their  mutual  and 
general  welfare,  binding  themselves  to  assist  each  other  against 
all  force  offered  to  or  attacks  made  upon  them,  or  any  of  them, 
on  account  of  religion,  sovereignty,  trade,  or  any  other  pretense 
whatever. 

Article  IV.  —  ^  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
States  in  this  Union,  the  free  inhabitants  of  each  of  these  States, 
paupers,  vagabonds,  and  fugitives  from  justice  excepted,  shall  be 
entitled  to  all  the  privileges  and  immunities  of  free  citizens  in 
the  several  States ;  and  the  people  of  each  State  shall  have  free 

533 


534  The  Ametican  Federal  State 

ingress  and  regress  to  and  from  any  other  State,  and  shall  enjoy 
therein  all  the  privileges  of  trade  and  commerce,  subject  to  the 
same  duties,  impositions  and  restrictions  as  the  inhabitants 
thereof  respectively ;  provided  that  such  restrictions  shall  not 
extend  so  far  as  to  prevent  the  removal  of  property  imported 
into  any  State  to  any  other  State  of  which  the  owner  is  an 
inhabitant ;  provided  also,  that  no  imposition,  duties,  or  restric- 
tion shall  be  laid  by  any  State  on  the  property  of  the  United 
States  or  either  of  them.  ^  If  any  person  guilty  of,  or  charged 
with,  treason,  felony,  or  other  high  misdemeanor  in  any  State 
shall  flee  from  justice  and  be  found  in  any  of  the  United  States, 
he  shall,  upon  demand  of  the  governor  or  executive  power  of  the 
State  from  which  he  fled,  be  delivered  up  and  removed  to  the 
State  having  jurisdiction  of  his  offense.  '  Full  faith  and  credit 
shall  be  given  in  each  of  these  States  to  the  records,  acts,  and 
judicial  proceedings  of  the  courts  and  magistrates  of  every  other 
State. 

Article  V. —  ^  For  the  more  convenient  management  of  the 
general  interests  of  the  United  States,  delegates  shall  be  annually 
appointed  in  such  manner  as  the  Legislature  of  each  State  shall 
direct,  to  meet  in  Congress  on  the  first  Monday  in  November,  in 
every  year,  with  a  power  reserved  to  each  State  to  recall  its  dele- 
gates, or  any  of  them,  at  any  time  within  the  year,  and  to  send 
others  in  their  stead  for  the  remainder  of  the  year.  No  State 
shall  be  represented  in  Congress  by  less  than  two,  nor  by  more 
than  seven  members ;  and  no  person  shall  be  capable  of  being  a 
delegate  for  more  than  three  years  in  any  term  of  six  years ;  '  nor 
shall  any  person,  being  a  delegate,  be  capable  of  holding  any 
ofiice  under  the  United  States  for  which  he,  or  another  for  his 
benefit,  receives  any  salary,  fees,  or  emoluments  of  any  kind. 
'  Each  State  shall  maintain  its  own  delegates  in  any  meeting  of 
the  States  and  while  they  act  as  members  of  the  Committee  of 
the  States.  In  determining  questions  in  the  United  States,  in 
Congress  assembled,  each  State  shall  have  one  vote.  Freedom 
of  speech  and  debate  in  Congress  shall  nqt  be  impeached  or 
questioned  in  any  court  or  place  out  of  Congress ;  and  the  mem- 
bers of  Congress  shall  be  protected  in  their  persons  from  arrests 
and  imprisonment  during  the  time  of  their  going  to  and  from, 
and  attendance  on,  Congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 


Appendix  A  535 

Article  VI.  —  ^  No  State,  without  the  consent  of  the  United 
States,  in  Congress  assembled,  shall  send  any  embassy  to,  or 
receive  any  embassy  from,  or  enter  into  any  conference,  agree- 
ment, alliance,  or  treaty  with  any  king,  prince,  or  state ;  "^  nor 
shall  any  person  holding  any  office  of  profit  or  trust  under  the 
United  States,  or  any  of  them,  accept  of  any  present,  emolument, 
office,  or  title  of  any  kind  whatever  from  any  king,  prince,  or 
foreign  state ;  '  nor  shall  the  United  States,  in  Congress  assem- 
bled, or  any  of  them,  grant  any  title  of  nobility. 

*  No  two  or  more  States  shall  enter  into  any  treaty,  confedera- 
tion or  alliance  whatever  between  them,  without  the  consent  of 
the  United  States,  in  Congress  assembled,  specifying  accurately 
the  purposes  for  which  the  same  is  to  be  entered  into,  and  how 
long  it  shall  continue. 

'  No  State  shall  lay  any  imposts  or  duties  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United 
States,  in  Congress  assembled,  with  any  king,  prince,  or  state, 
in  pursuance  of  any  treaties  already  proposed  by  Congress  to 
the  courts  of  France  and  Spain. 

•  No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any 
State  except  such  number  only  as  shall  be  deemed  necessary  by 
the  United  States,  in  Congress  assembled,  for  the  defense  of 
such  State  or  its  trade ;  nor  shall  any  body  of  forces  be  kept  up 
by  any  State  in  time  of  peace,  except  such  number  only  as  in  the 
judgment  of  the  United  States,  in  Congress  assembled,  shall  be 
deemed  requisite  to  garrison  the  forts  necessary  for  the  defense 
of  such  State  ;  but  every  State  shall  always  keep  up  a  well-regu- 
lated and  disciplined  militia,  sufficiently  armed  and  accoutered, 
and  shall  provide  and  constantly  have  ready  for  use  in  public 
stores  a  due  number  of  field  pieces  and  tents,  and  a  proper  quan- 
tity of  arms,  ammunition  and  camp  equipage. 

'  No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States,  in  Congress  assembled,  unless  such  State  be 
actually  invaded  by  enemies,  or  shall  have  received  certain 
advice  of  a  resolution  being  formed  by  some  nation  of  Indians  to 
invade  such  State,  and  the  danger  is  so  imminent  as  not  to  admit 
of  a  delay,  till  the  United  States,  in  Congress  assembled,  can  be 
consulted ;  nor  shall  any  State  grant  commissions  to  any  ships 
or  vessels  of  war,  nor  letters  of  marque  or  reprisal,  except  it  be 
after  a  declaration  of  war  by  the  United  States,  in  Congress 
assembled,  and  then  only  against  the  kingdom  or  state,  and  the 


536  The  American  Federal  State 

subjects  thereof,  against  which  war  has  been  so  declared,  and 
under  such  regulations  as  shall  be  established  by  the  United 
States,  in  Congress  assembled,  unless  such  State  be  infested  by 
pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for  that 
occasion,  and  kept  so  long  as  the  danger  shall  continue,  or  until 
the  United  States,  in  Congress  assembled,  shall  determine 
otherwise. 

Article  VII.  —  *  When  land  forces  are  raised  by  any  State  for 
the  common  defense,  all  officers  of  or  under  the  rank  of  Colonel 
shall  be  appointed  by  the  Legislature  of  each  State  respectively 
by  whom  such  forces  shall  be  raised,  or  in  such  manner  as  such 
State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the 
State  which  first  made  the  appointment. 

Article  VIII.  —  All  charges  of  war,  and  all  other  expenses 
that  shall  be  incurred  for  the  common  defense  or  general  welfare, 
and  allowed  by  the  United  States,  in  Congress  assembled,  shall 
be  defrayed  out  of  a  common  treasury,  which  shall  be  supplied 
by  the  several  States  in  proportion  to  the  value  of  all  land  within 
each  State,  granted  to,  or  surveyed  for,  any  person,  as  such  land 
and  the  buildings  and  improvements  thereon  shall  be  estimated, 
according  to  such  mode  as  the  United  States,  in  Congress 
assembled,  shall,  from  time  to  time,  direct  and  appoint.  The 
taxes  for  paying  that  proportion  shall  be  laid  and  levied  by  the 
authority  and  direction  of  the  Legislature  of  the  several  States, 
within  the  time  agreed  upon  by  the  United  States,  in  Congress 
assembled. 

Article  IX.  —  ^  The  United  States,  in  Congress  assembled, 
shall  have  the  sole  and  exclusive  right  and  power  of  determining 
on  peace  and  war,  except  in  the  cases  mentioned  in  the  sixth 
Article ;  ^  of  sending  and  receiving  ambassadors  ;  *  entering  into 
treaties  and  alliances,  provided  that  no  treaty  of  commerce 
shall  be  made,  whereby  the  legislative  power  of  the  respective 
States  shall  be  restrained  from  imposing  such  imposts  and  duties 
on  foreigners  as  their  own  people  are  subjected  to,  or  from  pro- 
hibiting the  exportation  or  importation  of  any  species  of  goods 
or  commodities  whatever ;  *  of  establishing  rules  for  deciding,  in 
all  cases,  what  captures  on  land  and  water  shall  be  legal,  and  in 
what  manner  prizes  taken  by  land  or  naval  forces  in  the  service 


Appendix  A  537 

of  the  United  States  shall  be  divided  or  appropriated ;  of  grant- 
ing letters  of  marque  and  reprisal  in  times  of  peace ;  appointing 
courts  for  the  trial  of  piracies  and  felonies  committed  on  the  high 
seas ;  '  and  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures  ;  provided  that  no  member 
of  Congress  shall  be  appointed  a  judge  of  any  of  the  said  courts. 
*  The  United  States,  in  Congress  assembled,  shall  also  be  the  last 
resort  on  appeal  in  all  disputes  and  differences  now  subsisting  or 
that  hereafter  may  arise  between  two  or  more  States  concerning 
boundary,  jurisdiction,  or  any  other  cause  whatever ;  which  author- 
ity shall  always  be  exercised  in  the  manner  following :  Whenever 
the  legislative  or  executive  authority,  or  lawful  agent  of  any 
State  in  controversy  with  another,  shall  present  a  petition  to 
Congress,  stating  the  matter  in  question,  and  praying  for  a  hear- 
ing, notice  thereof  shall  be  given  by  order  of  Congress  to  the 
legislative  or  executive  authority  of  the  other  State  in  contro- 
versy, and  a  day  assigned  for  the  appearance  of  the  parties  by 
their  lawful  agents,  who  shall  then  be  directed  to  appoint,  by 
joint  consent,  commissioners  or  judges  to  constitute  a  court  for 
hearing  and  determining  the  matter  in  question ;  but  if  they 
cannot  agree.  Congress  shall  name  three  persons  out  of  each  of 
the  United  States,  and  from  the  list  of  such  persons  each  party 
shall  alternately  strike  out  one,  the  petitioners  beginning,  until 
the  number  shall  be  reduced  to  thirteen ;  and  from  that  number 
not  less  than  seven  nor  more  than  nine  names,  as  Congress  shall 
direct,  shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot ; 
and  the  persons  whose  names  shall  be  so  drawn,  or  any  five 
of  them,  shall  be  commissioners  or  judges,  to  hear  and  finally 
determine  the  controversy,  so  always  as  a  major  part  of  the 
judges  who  shall  hear  the  cause  shall  agree  in  the  determination ; 
and  if  either  party  shall  neglect  to  attend  at  the  day  appointed, 
without  showing  reasons  which  Congress  shall  judge  sufficient, 
or  being  present,  shall  refuse  to  strike,  the  Congress  shall  pro- 
ceed to  nominate  three  persons  out  of  each  State,  and  the  secre- 
tary of  Congress  shall  strike  in  behalf  of  such  party  absent  or 
refusing ;  and  the  judgment  and  sentence  of  the  court,  to  be 
appointed  in  the  manner  before  prescribed,  shall  be  final  and 
conclusive ;  and  if  any  of  the  parties  shall  refuse  to  submit 
to  the  authority  of  such  court,  or  to  appear  or  defend  their  claim 
or  cause,  the  court  shall  nevertheless  proceed  to  pronounce 
sentence  or  judgment,  which  shall  in  like  manner  be  final  and 


53^  The  American  Federal  State 

decisive ;  the  judgment  or  sentence  and  other  proceedings  being 
in  either  case  transmitted  to  Congress,  and  lodged  among  the 
acts  of  Congress  for  the  security  of  the  parties  concerned ;  pro- 
vided, that  every  commissioner,  before  he  sits  in  judgment,  shall 
take  an  oath,  to  be  administered  by  one  of  the  judges  of  the 
supreme  court  of  the  State  where  the  cause  shall  be  tried,  "  well 
and  truly  to  hear  and  determine  the  matter  in  question,  accord- 
ing to  the  best  of  his  judgment,  without  favor,  affection,  or  hope 
of  reward."  Provided,  also,  that  no  State  shall  be  deprived  of 
territory  for  the  benefit  of  the  United  States. 

^  All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdictions, 
as  they  may  respect  such  lands  and  the  States  which  passed  such 
grants  are  adjusted,  the  said  grants  or  either  of  them  being  at 
the  same  time  claimed  to  have  originated  antecedent  to  such 
settlement  of  jurisdiction,  shall,  on  the  petition  of  either  party  to 
the  Congress  of  the  United  States,  be  finally  determined,  as  near 
as  may  be,  in  the  same  manner  as  is  before  prescribed  for  de- 
ciding disputes  respecting  territorial  jurisdiction  between  different 
States. 

*  The  United  States,  in  Congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the  alloy 
and  value  of  coin  struck  by  their  own  authority,  or  by  that  of 
the  respective  States ;  fixing  the  standard  of  weights  and  meas- 
ures throughout  the  United  States ;  ^  regulating  the  trade  and 
managing  all  affairs  with  the  Indians,  not  members  of  any  of  the 
States ;  provided  that  the  legislative  right  of  any  State,  within 
its  own  limits,  be  not  infringed  or  violated ;  ^°  establishing  and 
regulating  post  offices  from  one  State  to  another,  throughout  all 
the  United  States,  and  exacting  such  postage  on  the  papers 
passing  through  the  same  as  may  be  requisite  to  defray  the 
expenses  of  the  said  office ;  ^^  appointing  all  officers  of  the  land 
forces  in  the  service  of  the  United  States,  excepting  regimental 
officers ;  appointing  all  the  officers  of  the  naval  force.s,  and  com- 
missioning all  officers  whatever  in  the  service  of  the  United 
States ;  making  rules  for  the  government  and  regulation  of  the 
said  land  and  naval  forces,  and  directing  their  operations. 

"The  United  States,  in  Congress  assembled,  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of  Con- 
gress, to  be  denominated,  "  A  Committee  of  the  States,"  and  to 
consist  of  one  delegate  from  each  State ;  and  to  appoint  such 


Appendix  A  539 

other  committees  and  civil  ofificers  as  may  be  necessary  for 
managing  the  general  affairs  of  the  United  States  under  their 
direction ;  ^'  to  appoint  one  of  their  number  to  preside,  provided 
that  no  person  shall  be  allowed  to  serve  in  the  office  of  president 
more  than  one  year  in  any  term  of  three  years ;  "  to  ascertain 
the  necessary  sums  of  money  to  be  raised  for  the  service  of  the 
United  States,  and  to  appropriate  and  apply  the  same  for  defray- 
ing the  public  expenses ;  ^^  to  borrow  money  or  emit  bills  on  the 
credit  of  the  United  States,  transmitting  every  half  year  to  the 
respective  States  an  account  of  the  sums  of  money  so  borrowed 
or  emitted ;  ^'  to  build  and  equip  a  navy ;  "  to  agree  upon  the 
number  of  land  forces,  and  to  make  requisitions  from  each  State 
for  its  quota,  in  proportion  to  the  number  of  white  inhabitants  in 
such  State,  which  requisition  shall  be  binding;  and  thereupon 
the  Legislature  of  each  State  shall  appoint  the  regimental  offi- 
cers, raise  the  men,  and  clothe,  arm,  and  equip  them  in  a  soldier- 
like manner,  at  the  expense  of  the  United  States;  and  the 
officers  and  men  so  clothed,  armed,  and  equipped  shall  march 
to  the  place  appointed,  and  within  the  time  agreed  on  by  the 
United  States,  in  Congress  assembled ;  but  if  the  United  States, 
in  Congress  assembled,  shall,  on  consideration  of  circumstances, 
judge  proper  that  any  State  should  not  raise  men,  or  should 
raise  a  smaller  number  than  its  quota,  and  that  any  other  State 
should  raise  a  greater  number  of  men  than  the  quota  thereof, 
such  extra  number  shall  be  raised,  officered,  clothed,  armed,  and 
equipped  in  the  same  manner  as  the  quota  of  such  State,  unless 
the  Legislature  of  such  State  shall  judge  that  such  extra  number 
can  not  be  safely  spared  out  of  the  same,  in  which  case  they 
shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such  extra 
number  as  they  judge  can  be  safely  spared,  and  the  officers  and 
men  so  clothed,  armed,  and  equipped  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on  by  the  United  States, 
in  Congress  assembled. 

*'  The  United  States,  in  Congress  assembled,  shall  never  en- 
'^age  in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of 
peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin  money, 
nor  regulate  the  value  thereof,  nor  ascertain  the  sums  and  ex- 
penses necessary  for  the  defense  and  welfare  of  the  United 
States,  or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the 
credit  of  the  United  States,  nor  appropriate  money,  nor  agree 
upon  the  number  of  vessels  of  war  to  be  built  or  purchased,  or 


540  The  American  Federal  State 

the  number  of  land  or  sea  forces  to  be  raised,  nor  appoint  a  com- 
mander-in-chief of  the  army  or  navy,  unless  nine  States  assent  to 
the  same ;  nor  shall  a  question  on  any  other  point,  except  for 
adjourning  from  day  to  day,  be  determined,  unless  by  the  votes 
of  a  majority  of  the  United  States,  in  Congress  assembled. 

"The  Congress  of  the  United  States  shall  have  power  to 
adjourn  to  any  time  within  the  year,  and  to  any  place  within  the 
United  States  so  that  no  period  of  adjournment  be  for  a  longer 
duration  than  the  space  of  six  months,  and  shall  publish  the 
journal  of  their  proceedings  monthly,  except  such  parts  thereof 
relating  to  treaties,  alliances,  or  military  operations  as  in  their 
judgment  require  secrecy ;  and  the  yeas  and  nays  of  the  delegates 
of  each  State,  on  any  question,  shall  be  entered  on  the  journal 
when  it  is  desired  by  any  delegate ;  and  the  delegates  of  a 
State,  or  any  of  them,  at  his  or  their  request,  shall  be  furnished 
with  a  transcript  of  the  said  journal  except  such  parts  as  are 
above  excepted,  to  lay  before  the  legislatures  of  the  several 
States. 

Article  X.  —  The  Committee  of  the  States,  or  any  nine  of 
them,  shall  be  authorized  to  execute,  in  the  recess  of  Congress, 
such  of  the  powers  of  Congress  as  the  United  States,  in  Congress 
assembled,  by  the  consent  of  nine  States,  shall,  from  time  to  time, 
think  expedient  to  vest  them  with ;  provided,  that  no  power  be 
delegated  to  the  said  Committee,  for  the  exercise  of  which,  by 
the  Articles  of  Confederation,  the  voice  of  nine  States  in  the 
Congress  of  the  United  States  assembled  is  requisite. 

Article  XI.  —  Canada,  acceding  to  this  Confederation,  and 
joining  in  the  measures  of  the  United  States,  shall  be  admitted 
into,  and  entitled  to  all  the  advantages  of  this  Union ;  but  no 
other  colony  shall  be  admitted  into  the  same,  unless  such  admis- 
sion be  agreed  to  by  nine  States. 

Article  XII.  —  All  bills  of  credit  emitted,  moneys  borrowed, 
and  debts  contracted  by  or  under  the  authority  of  Congress,  be- 
fore the  assembling  of  the  United  States,  in  pursuance  of  the 
present  Confederation,  shall  be  deemed  and  considered  as  a 
charge  against  the  United  States,  for  payment  and  satisfaction 
whereof  the  said  United  States  and  the  public  faith  are  hereby 
solemnly  pledged. 


Appendix  A  54! 

Article  XIII.  —  Every  State  shall  abide  by  the  determinations 
of  the  United  States,  in  Congress  assembled,  on  all  questions 
which  by  this  Confederation  are  submitted  to  them.  And  the 
Articles  of  this  Confederation  shall  be  inviolably  observed  by 
every  State,  and  the  Union  shall  be  perpetual ;  nor  shall  any 
alteration  at  any  time  hereafter  be  made  in  any  of  them,  unless 
such  alteration  be  agreed  to  in  a  Congress  of  the  United  States, 
and  be  afterwards  confirmed  by  the  Legislatures  of  every  State. 

And  whereas,  it  hath  pleased  the  great  Governor  of  the  world  to 
incline  the  hearts  of  the  Legislatures  we  respectively  represent  in 
Congress  to  approve  of,  and  to  authorize  us  to  ratify,  the  said 
Articles  of  Confederation  and  perpetual  Union ;  know  ye,  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do,  by  these  presents,  in  the  name 
and  in  behalf  of  our  respective  constituents,  fully  and  entirely 
ratify  and  confirm  each  and  every  of  the  said  Articles  of  Confed- 
eration and  perpetual  Union,  and  all  and  singular  the  matters 
and  things  therein  contained.  And  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constituents,  that 
they  shall  abide  by  the  determinations  of  the  United  States,  in 
Congress  assembled,  on  all  questions  which  by  the  said  Con- 
federation are  submitted  to  them ;  and  that  the  Articles  thereof 
shall  be  inviolably  observed  by  the  States  we  respectively  repre- 
sent, and  that  the  Union  shall  be  perpetual.  In  witness  whereof, 
we  have  hereunto  set  our  hands  in  Congress.  Done  at  Philadel- 
phia, in  the  State  of  Pennsylvania,  the  ninth  day  of  July,  in  the 
year  of  our  Lord  1778,  and  in  the  third  year  of  the  Independence 
of  America. 


APPENDIX  B 


Preamble. 
Objects  of 
the  Constitu- 
tion (cf.  A.  of 
C.  Art.  III). 


CONSTITUTION  OF  THE  UNITED  STATES— 1787 

We  the  people  of  the  United  States,  in  Order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquility,  pro- 
vide for  the  common  defence,  promote  the  general  Welfare,  and 
secure  the  Blessings  of  Liberty  to  ourselves  and  our  Posterity, 
do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America. 


Article.  I. 


Congress. 
Two  houses. 


House  of 
Represen- 
tatives. 
Term  and 
election. 

Qualifica- 
tions—  age, 
citizenship, 
residence. 

Method  of 
apportioning 
representa- 
tives.   (Part 
in  brackets 
superseded 
by  Sec.  a  of 
Amendment 
XIV.) 


Section  i.  All  legislative  Powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a  Sen- 
ate and  House  of  Representatives. 

Section  2.  [i]  The  House  of  Representatives  shall  be  com- 
posed of  Members  chosen  every  second  Year  by  the  People  of 
the  several  States,  and  the  Electors  in  each  State  shall  have  the 
Qualifications  requisite  for  Electors  of  the  most  numerous  Branch 
of  the  State  Legislature. 

[2]  No  Person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  age  of  twenty-five  Years,  and  been  seven  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be 
an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

[3]  [Representatives  and  direct  Taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within  this 
Union,  according  to  their  respective  Numbers,  which  shall  be 
determined  by  adding  to  the  whole  Number  of  free  Persons, 
including  those  bound  to  Service  for  a  Term  of  Years,  and  ex- 
cluding Indians  not  taxed,  three  fifths  of  all  other  Persons.] 
The  actual  Enumeration  shall  be  made  within  three  Years 
after  the  first  Meeting  of  the  Congress  of  the  United  States, 

A.  of  C.  3=  Articles  of  Confederation. 
542 


Appendix  B 


543 


and  within  every  subsequent  Term  of  ten  Years,  in  such  Manner 
as  they  shall  by  Law  direct.     The  Number  of  Representatives   Census, 
shall  not  exceed  one  for  every  thirty  Thousand,  but  each  State 
shall  have  at  least  one  Representative ;  and  until  such  enumera- 
tion shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled  Temporary 
to  chuse  three,  Massachusetts  eight,  Rhode-Island  and  Providence   apportion- 
Plantations  one,  Connecticut  five.  New  York  six,  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia  ten, 
North  Carolina  five.  South  Carolina  five,  and  Georgia  three. 

[4]  When  vacancies  happen  in  the  Representation  from  any   Vacancies. 
State,  the  Executive  Authority  thereof  shall  issue  Writs  of  Elec- 
tion to  fill  such  Vacancies. 

[5]  The  House  of  Representatives  shall  chuse  their  Speaker   Officers, 
and  other  Officers ;  and  shall  have  the  sole  Power  of  Impeach- 
ment. 


Section  3.  [i]  The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  State,  chosen  by  the  Legislature 
thereof,  for  six  Years ;  and  each  Senator  shall  have  one  Vote. 

[2]  Immediately  after  they  shall  be  assembled  in  Consequence 
of  the  first  Election,  they  shall  be  divided  as  equally  as  may  be 
into  three  Classes.  The  Seats  of  the  Senators  of  the  first  Class 
shall  be  vacated  at  the  Expiration  of  the  second  Year,  of  the 
second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the 
third  Class  at  the  Expiration  of  the  sixth  Year,  so  that  one-third 
may  be  chosen  every  second  Year ;  and  if  Vacancies  happen  by 
Resignation,  or  otherwise,  during  the  Recess  of  the  Legislature 
of  any  State,  the  Executive  thereof  may  make  temporary  Appoint- 
ments until  the  next  Meeting  of  the  Legislature,  which  shall  then 
fill  such  Vacancies. 

[3]  No  Person  shall  be  a  Senator  who  shall  not  have  attained 
to  the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

[4]  The  Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

[5]  The  Senate  shall  chuse  their  other  Officers,  and  also  a 
President  pro  tempore,  in  the  Absence  of  the  Vice  President, 
or  when  he  shall  exercise  the  Office  of  President  of  the  United 
States. 


Senate. 
Election  and 
term  (cf.  A. 
of  C,  Art.  VI). 

Division  of 
Senators 
into  three 
classes. 


Vacancies. 


Qualifica- 
tions —  age, 
citizenship, 
residence. 

Vice-presi- 
dent. 


Officers  (cf. 
A.  ofC, 
Art.  1X18). 


544 


The  American  Federal  State 


Trial  of  im- 
peachments. 


Judgment  in 
cases  of  im- 
peachment. 


Both 

Houses. 

Times, 

places,  and 

method  of 

electing 

members. 

Time  of 
meeting. 

Membership 

regulations. 

Quorum. 


Rules  of  each 
house. 


Journals 
(cf.  A.  of  C, 
Art.  IX"). 


Special  ad- 
journments. 


[6]  The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments. When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or 
Affirmation.  When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside  :  And  no  Person  shall  be  convicted 
without  the  Concurrence  of  two  thirds  of  the  Members  present. 

[7]  Judgment  in  Cases  of  Impeachment  shall  not  extend 
further  than  to  removal  from  Office,  and  disqualification  to 
hold  and  enjoy  any  Office  of  honor,  Trust  or  Profit  under  the 
United  States :  but  the  Party  convicted  shall  nevertheless  be 
liable  and  subject  to  Indictment,  Trial,  Judgment  and  Punish- 
ment, according  to  Law. 

Section  4.  [i]  The  Times,  Places  and  Manner  of  holding 
Elections  for  Senators  and  Representatives,  shall  be  prescribed 
in  each  State  by  the  Legislature  thereof;  but  the  Congress  may 
at  any  time  by  Law  make  or  alter  such  Regulations,  except  as  to 
the  Places  of  chusing  Senators. 

[2]  The  Congress  shall  assemble  at  least  once  in  every  Year, 
and  such  Meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  Law  appoint  a  different  Day. 

Section  5.  [i]  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a  Majority 
of  each  shall  constitute  a  Quorum  to  do  Business ;  but  a  smaller 
Number  may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 

[2]  Each  House  may  determine  the  Rules  of  its  Proceedings, 
punish  its  Members  for  disorderly  Behaviour,  and,  with  the  Con- 
currence of  two  thirds,  expel  a  Member. 

[3]  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  Parts  as  may 
in  their  Judgment  require  Secrecy ;  and  the  Yeas  and  Nays  of 
the  Members  of  either  House  on  any  question  shall,  at  the  Desire 
of  one  fifth  of  those  Present,  be  entered  on  the  Journal. 

[4]  Neither  House,  during  the  Session  of  Congress,  shall, 
without  the  Consent  of  the  other,  adjourn  for  more  than  three 
days,  nor  to  any  other  Place  than  that  in  which  the  two  Houses 
shall  be  sitting. 

Section  6.  [i]  The  Senators  and  Representatives  shall  re- 
ceive a  Compensation  for  their  Services,  to  be  ascertained  by 


Appendix  B 


545 


law,  and  paid  out  of  the  Treasury  of  the  United  States.  They 
shall  in  all  Cases,  except  Treason,  Felony,  and  Breach  of  the 
Peace,  be  privileged  from  Arrest  during  their  Attendance  at  the 
Session  of  their  respective  Houses,  and  in  going  to  and  returning 
from  the  same ;  and  for  any  Speech  or  Debate  in  either  House, 
they  shall  not  be  questioned  in  any  other  Place. 

[2]  No  Senator  or  Representative  shall,  during  the  Time  for 
which  he  was  elected,  be  appointed  to  any  civil  Office  under  the 
Authority  of  the  United  States,  which  shall  have  been  created, 
or  the  Emoluments  whereof  shall  have  been  encreased  during 
such  time ;  and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during  his  Continuance 
in  Office. 


Compensa- 
tion and 
privileges  of 
members 
(cf.  A.  of  C, 
Art.  V8). 

Disabilities 
of  members 
(cf.  A.  of  C, 
Art.  V2). 


Section  7.  [i]  All  Bills  for  raising  Revenue  shall  originate 
in  the  House  of  Representatives ;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 

[2]  Every  Bill  which  shall  have  passed  the  House  of  Repre- 
sentatives and  the  Senate,  shall,  before  it  become  a  Law,  be 
presented  to  the  President  of  the  United  States  ;  If  he  approve 
he  shall  sign  it,  but  if  not  he  shall  return  it,  with  his  Objections 
to  that  House  in  which  it  shall  have  originated,  who  shall  enter 
the  Objections  at  large  on  their  Journal,  and  proceed  to  recon- 
sider it.  If  after  such  Reconsideration  two  thirds  of  that  House 
shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the 
Objections,  to  the  other  House,  by  which  it  shall  likewise  be 
reconsidered,  and  if  approved  by  two  thirds  of  that  House,  it 
shall  become  a  Law.  But  in  all  such  Cases  the  Votes  of  both 
Houses  shall  be  determined  by  Yeas  and  Nays,  and  the  Names 
of  the  Persons  voting  for  and  against  the  Bill  shall  be  entered  on 
the  Journal  of  each  House  respectively.  If  any  Bill  shall  not  be 
returned  by  the  President  within  ten  Days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  Same  shall  be  a 
Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  Adjournment  prevent  its  Return,  in  which  Case  it  shall 
not  be  a  Law. 

[3]  Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  Adjournment)  shall  be  presented  to  the 
President  of  the  United  States  and  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 

3N 


Revenue 
bills. 


Veto  of 
President  on 
bills  (cf.  A. 
of  C,  Art. 
1X18). 


Veto  on 
resolutions. 


546 


The  American  Federal  State 


shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  Rules  and  Limitations  pre- 
scribed in  the  Case  of  a  Bill. 


Powers  of 
Congress. 

Taxation  (cf. 
A.  of  C, 
Art.  VIII). 

Borrowing.! 

Regulating 
commerce.2 

Naturaliza- 
tion and 
bankruptcy. 
Coins, 
weights,  and 
measures. 
Counter- 
feiting. 

Post  offices.8 
Patents  and 
copyrights. 

Inferior 
courts.* 
Piracies. 

War  (cf.  A. 
of  C,  Art 
1X1,4). 
Army.* 

Navy.' 
Land  and 
naval  forces.^ 

Militia,  in 
service. 

Militia, 
organization. 


Section  8.  The  Congress  shall  have  Power  [i]  To  lay  and 
collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and 
provide  for  the  common  Defence  and  general  Welfare  of  the 
United  States;  but  all  duties.  Imposts  and  Excises  shall  be 
uniform  throughout  the  United  States; 

[2]  To  borrow  Money  on  the  credit  of  the  United  States ; 

[3]  To  regulate  Commerce  with  foreign  Nations,  and  among 
the  several  States,  and  with  the  Indian  Tribes; 

[4]  To  establish  an  uniform  Rule  of  Naturalization,  and 
uniform  Laws  on  the  subject  of  Bankruptcies  throughout  the 
United  States; 

[5]  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  and  Measures ; 

[6]  To  provide  for  the  Punishment  of  counterfeiting  the 
Securities  and  current  Coin  of  the  United  States ; 

[7]  To  establish  Post  Offices  and  post  Roads; 

[8]  To  promote  the  Progress  of  Science  and  useful  Arts  by  se- 
curing for  limited  Times  to  Authors  and  Inventors  the  exclusive 
Right  to  their  respective  Writings  and  Discoveries ; 

[9]  To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

[10]  To  define  and  punish  Piracies  and  Felonies  committed 
on  the  high  Seas,  and  Offences  against  the  Law  of  Nations ; 

[11]  To  declare  War,  grant  Letters  of  Marque  and  Reprisal, 
and  make  Rules  concerning  Captures  on  Land  and  Water; 

[12]  To  raise  and  support  Annies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two  Years ; 

[13]  To  provide  and  maintain  a  Navy; 

[14]  To  make  Rules  for  the  Government  and  Regulation  of 
the  land  and  naval  Forces ; 

[15]  To  provide  for  calling  forth  the  Militia  to  execute  the 
Laws  of  the  Union,  suppress  Insurrections  and  repel  Invasions; 

[16]  To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Part  of  them  as  may  be  employed 


iCf.  A.ofC.,ArtIX". 
9C£A.  ofC.,ArtIX«,9. 
«Cf.  A.ofC.,  Art.  IXW. 


*  Cf.  A.  of  C.  Art.  IX«. 

»  Cf.  A.  of  C,  Art  VIII.  Art.  IX". 

•  Cf.A.ofC..ArtIX". 


7  Cf:  A.  of  C,  Art  IX". 


Appendix  B  547 

in  the  Service  of  the  United  States,  reserving  to  the  States 
respectively,  the  Appointment  of  the  Officers,  and  the  Authority 
of  training  the  Militia  according  to  the  discipline  prescribed  by 
Congress ; 

[17]  To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,   Seat  of 
over  such  District  (not  exceeding  ten  Miles  square)  as  may,  by  government 
Cession  of  particular  States,  and  the  Acceptance  of  Congress 
become  the  Seat  of  the  Government  of  the  United  States,  and  to 
exercise  like  Authority  over  all  Places  purchased  by  the  Consent    . 
of  the  Legislature  of  the  State  in  which  the  Same  shall  be,  for 
the  Erection  of  Forts,  Magazines,  Arsenals,  dock- Yards,  and 
other  needful  Buildings ;  —  And 

[18]  To  make  all  Laws  which  shall  be  necessary  and  proper  Supple- 
for  carrying  into  Execution  the  foregoing  Powers,  and  all  other  mentary 
Powers  vested  by  this  Constitution  in  the  Government  of  the    ^P***'°°' 
United  States,  or  in  any  Department  or  Officer  thereof. 

Section  9.     [i]   The  Mig^tion  or  Importation  of  such  Per-  Limitations 

sons  as  any  of  the  States  now  existing  shall  think  proper  to  *"•  powers  of 
admit,  shall  not  be  prohibited  by  the  Congress  prior  to  the  Year     ""s*"*"- 

one  thousand  eight  hundred  and  eight,  but  a  Tax  or  duty  may  Slave  trade, 
be  imposed  on  such  Importation,  not  exceeding  ten  dollars  for 
each  Person. 

[2]   The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  Habeas 

suspended,  unless  when  in  Cases  of  Rebellion  or  Invasion  the  corpus, 

public  Safety  may  require  it.  ^'^'^  °*^ 

[3]    No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  ex  post  facto 

passed.  laws. 

[4]   No  Capitation,  or  other  direct,  tax  shall  be  laid,  unless  in  Direct  tox. 
Proportion  to  the  Census  or  Enumeration  herein  before  directed 
to  be  taken. 

[5]    No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  Tax  on  ex- 

any  State.  PO"^- 

[6]  No  Preference  shall  be  given  by  any  Regulation  of  Com-  Uniform 

merce  or  Revenue  to  the  Ports  of  one  State  over  those  of  another :  commercial 

nor  shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  ^^^  ^  '°"*'  . 
enter,  clear,  or  pay  Duties  in  another. 

[7]   No  money  shall  be  drawn  from  the  Treasury,  but  in  Con-  Finance, 
sequence  of  Appropriations  made  by  Law ;  and  a  regular  State- 
ment and  Account  of  the  Receipts  and  Expenditures  of  all  public 
Money  shall  be  published  from  time  to  time. 


548 


The  American  Federal  State 


Titles  of  no- 
bility and 
presents 
(cf.  A.ofC, 
Art  VI  2.8). 


Limitations 
OH  powtrs  of 
States. 

Specific 
prohibitions 
(ct  A.  of  C, 
Art.  Vn.3.*), 
Limitations 
on  imposts 
(cf.  A.  of  C, 
Art  VI 6). 


Prohibitions 
removable 
with  consent 
of  Congress 
(cf.  A.  of  C. 
Art  VI  8.^. 


[8]  No  title  of  Nobility  shall  be  granted  by  the  United  States : 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  the  Congress,  accept  of  any  present, 
Emolument,  Office,  or  Title,  of  any  kind  whatever,  from  any 
King,  Prince,  or  foreign  State. 

Section  lo.  [i]  No  State  shall  enter  into  any  Treaty,  Alli- 
ance, or  Confederation ;  grant  Letters  of  Marque  and  Reprisal ; 
coin  Money ;  emit  Bills  of  Credit,  make  any  Thing  but  gold  and 
silver  Coin  a  Tender  in  Payment  of  Debts ;  pass  any  Bill  of 
Attainder,  ex  post  facto  Law,  or  Law  impairing  the  obligation  of 
Contracts,  or  grant  any  Title  of  Nobility. 

[2]  No  State  shall,  without  the  Consent  of  the  Congress,  lay 
any  Imposts  or  Duties  on  Imports  or  Exports,  except  what  may 
be  absolutely  necessary  for  executing  it's  inspection  Laws :  and 
the  net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on 
Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States ;  and  all  such  Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 

[3]  No  State  shall,  without  the  Consent  of  Congress,  lay 
any  Duty  of  tonnage,  keep  Troops,  or  Ships  of  War  in  time  of 
Peace,  enter  into  any  Agreement  or  Compact  with  another  State, 
or  with  a  foreign  Power,  or  engage  in  War,  unless  actually  in- 
vaded, or  in  such  imminent  Danger  as  will  not  admit  of  delay. 


President 
(cf.  A.  of  C, 

Art.  1x12, 
Art.  X). 
Term. 
Presidential 
electors  and 
method  of 
choosing 
President 

(Part  in 
brackets 
superseded 
by  XII 
Amend- 
ment.) 


Article.  II. 

Section  i.  [i]  The  executive  Power  shall  be  vested  in  a 
President  of  the  United  States  of  America.  He  shall  hold  his 
Office  during  the  Term  of  four  Years,  and,  together  with  the 
Vice  President,  chosen  for  the  same  term,  be  elected,  as  follows : 

[2]  Each  State  shall  appoint,  in  such  Manner  as  the  Legisla- 
ture thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole 
Number  of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress :  but  no  Senator  or  Representative, 
or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector.  [The  electors  shall  meet 
in  their  respective  States,  and  vote  by  ballot  for  two  Persons,  of 
whom  one  at  least  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves.  And  they  shall  make  a  List  of  all  the  Persons 
voted  for,  and  of  the  Number  of  Votes  for  each ;  which  List  they 


Appendix  B  549 

shall  sign  and  certify,  and  transmit  sealed  to  the  Seat  of  the 
Government  of  the  United  States,  directed  to  the  President  of 
the  Senate.  The  President  of  the  Senate  shall,  in  the  Presence 
of  the  Senate  and  House  of  Representatives,  open  all  the  Cer- 
tificates, and  the  Votes  shall  then  be  counted.  The  Person 
having  the  greatest  Number  of  Votes  shall  be  the  President,  if 
such  Number  be  a  Majority  of  the  whole  Number  of  Electors 
appointed ;  and  if  there  be  more  than  one  who  have  such  Major- 
ity, and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse  by  Ballot  one  of  them 
for  President ;  and  if  no  Person  have  a  Majority,  then  from  the 
five  highest  on  the  List  the  said  House  shall  in  like  Manner  chuse 
the  President.  But  in  chusing  the  President,  the  Votes  shall  be 
taken  by  States,  the  Representation  from  each  State  having  one 
Vote ;  A  quorum  for  this  Purpose  shall  consist  of  a  Member  or 
Members  from  two-thirds  of  the  States,  and  a  Majority  of  all  the 
States  shall  be  necessary  to  a  Choice.  In  every  Case,  after  the 
Choice  of  the  President,  the  Person  having  the  greatest  Number 
of  Votes  of  the  Electors  shall  be  the  Vice  President.  But  if 
there  should  remain  two  or  more  who  have  equal  Votes,  the 
Senate  shall  chuse  from  them  by  Ballot  the  Vice  President.] 

[3]  The  Congress  may  determine  the  Time  of  chusing  the  Dates  of 
Electors,  and  the  Day  on  which  they  shall  give  their  Votes ;  elections, 
which  Day  shall  be  the  same  throughout  the  United  States. 

[4]    No  Person  except  a  natural  born  Citizen,  or  a  citizen  of  Qualifica- 

the  United  States,  at  the  time  of  the  Adoption  of  this  Constitu-   tions,  citizen- 

tion,  shall  be  eligible  to  the  Office  of  President :  neither  shall   ^^T'  ^^•^' 
°  and  resi- 

any  Person  be  eligible  to  that  Office  who  shall  not  have  attained   dence. 

to  the  Age  of  thirty  five  Years,  and  been  fourteen  Years  a  Resi- 
dent within  the  United  States. 

[5]  In  Case  of  the  Removal  of  the  President  from  Office,  or  Presidential 
of  his  Death,  Resignation,  or  Inability  to  discharge  the  Powers  succession, 
and  Duties  of  the  said  Office,  the  same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by  Law  provide  for  the  Case  of 
Removal,  Death,  Resignation,  or  Inability,  both  of  the  President 
and  Vice  President,  declaring  what  Officer  shall  then  act  as  Presi- 
dent, and  such  Officer  shall  act  accordingly,  until  the  Disability 
be  removed,  or  a  President  shall  be  elected. 

[6]    The  President  shall,  at  stated  Times,  receive  for  his  Ser-  Compensa- 
vices,  a  Compensation,  which   shall .  neither  be   encreased   nor   ^^°^' 
diminished  during  the  Period  for  which  he  shall  have  been 


550 


The  American  Federal  State 


Oath  of 
office. 


elected,  and  he  shall  not  receive  within  that  Period  any  other 
Emolument  from  the  United  States,  or  any  of  them. 

[7]  Before  he  enter  on  the  Execution  of  his  Office,  he  shall 
take  the  following  Oath  or  Affirmation  :  —  "I  do  solemnly  swear 
(or  affirm)  that  I  will  faithfully  execute  the  Office  of  President  of 
the  United  States,  and  will  to  the  best  of  my  Ability,  preserve, 
protect  and  defend  the  Constitution  of  the  United  States." 


Powers  of 
President. 


Military, 
supervisory, 
and  judicial. 


In  treaties 
and  in  ap>- 
pointments. 


Temporary 
appoint- 
ments. 


Section  2.  [i]  The  President  shall  be  Commander  in  Chief 
of  the  Army  and  Navy  of  the  United  States,  and  of  the  Militia  of 
the  several  States,  when  called  into  the  actual  Service  of  the 
United  States ;  he  may  require  the  Opinion,  in  writing,  of  the 
principal  Officer  in  each  of  the  executive  Departments,  upon  any 
Subject  relating  to  the  Duties  of  their  respective  Offices,  and  he 
shall  have  Power  to  grant  Reprieves  and  Pardons  for  Offences 
against  the  United  States,  except  in  Cases  of  Impeachment. 

[2]  He  shall  have  Power,  by  and  with  the  Advice  and  Con- 
sent of  the  Senate,  to  make  Treaties,  provided  two-thirds  of  the 
Senators  present  concur ;  and  he  shall  nominate,  and  by  and  with 
the  Advice  and  Consent  of  the  Senate,  shall  appoint  Ambassa- 
dors, other  public  Ministers  and  Consuls,  Judges  of  the  supreme 
Court,  and  all  other  Officers  of  the  United  States,  whose  Appoint- 
ments are  not  herein  otherwise  provided  for,  and  which  shall 
be  established  by  Law :  but  the  Congress  may  by  Law  vest  the 
Appointment  of  such  inferior  Officers,  as  they  think  proper,  in  the 
President  alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Depart- 
ments. 

[3]  The  President  shall  have  Power  to  fill  up  all  Vacancies 
that  may  happen  during  the  Recess  of  the  Senate,  by  granting 
Commissions  which  shall  expire  at  the  End  of  their  next  Session. 


Legislative  Section  3.     He  shall  from  time  to  time  give  to  the  Congress 

powers.  Information  of  the  State  of  the  Union,  and  recommend  to  their 

Consideration  such  Measures  as  he  shall  judge  necessary  and 
expedient ;  he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper;  he  shall  receive 
Ambassadors  and  other  public  Ministers  ;  he  shall  take  Care  that 
the  Laws  be  faithfully  executed,  and  shall  Commission  all  the 
Officers  of  the  United  States. 


Appendix  B 


551 


Section  4.    The  President,  Vice  President  and  all  civil  Officers  Liability  to 
of  the  United  States,  shall  be  removed  from  Office  on  Impeach-  impeach- 
ment for,  and  Conviction  of,  Treason,  Bribery,  or  other  high  ™^"** 
Crimes  and  Misdemeanors. 


Article  III. 

Section  i.     The  judicial  Power  of  the  United  States,  shall  be  Judiciary. 
vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as  the   Courts. 
Congress   may  from  time  to  time  ordain  and  establish.     The 
Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold  their  Judges:  term 
Offices  during  good  Behaviour,  and  shall,  at  stated  Times,  receive   *"^  compcn- 
for  their  Services,  a  Compensation,  which  shall  not  be  diminished 
during  their  Continuance  in  Office. 


Jurisdiction 
(cf.  A.  ofC, 
Art.  IX*.  0. 


Section  2.  [i]  The  judicial  Power  shall  extend  to  all  Cases, 
in  Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of 
the  United  States,  and  Treaties  made,  or  which  shall  be  made, 
under  their  Authority ;  —  to  all  cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls  ;  —  to  all  cases  of  admiralty  and 
maritime  Jurisdiction;  —  to  Controversies  to  which  the  United 
States  shall  be  a  party ;  —  to  Controversies  between  two  or  more 
States ;  —  between  a  State  and  Citizens  of  another  State ;  —  be- 
tween Citizens  of  different  States  —  between  Citizens  of  the  same 
State  claiming  Lands  under  Grants  of  different  States,  and  be- 
tween a  State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens 
or  subjects. 

[2]  In  all  Cases  affecting  Ambassadors,  other  public  Ministers 
and  Consuls,  and  those  in  which  a  State  shall  be  Party,  the 
supreme  Court  shall  have  original  Jurisdiction.  In  all  the  other 
Cases  before  mentioned,  the  supreme  Court  shall  have  appellate 
Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions,  and 
under  such  Regulations  as  the  Congress  shall  make. 

[3]  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury ;  and  such  Trial  shall  be  held  in  the  State  where 
the  said  Crimes  shall  have  been  committed ;  but  when  not  com- 
mitted within  any  State,  the  Trial  shall  be  at  such  Place  or 
Places  as  the  Congress  may  by  Law  have  directed. 


Section  3.     [i]  Treason  against  the  United  States,  shall  con-   Treason: 
sist  only  in  levying  War  against  them,  or  in  adhering  to  their  definition, 


Original  and 
appellate  ju- 
risdiction of 
Supreme 
Court 


Jury  trial. 
Place  of  trial. 


552 


The  American  Federal  State 


punishment. 


Enemies,  giving  them  Aid  and  Comfort.  No  Person  shall  be 
convicted  of  Treason  unless  on  the  Testimony  of  two  Witnesses 
to  the  same  overt  Act,  or  on  Confession  in  open  Court. 

[2]  The  Congress  shall  have  Power  to  declare  the  Punishment 
of  Treason,  but  no  Attainder  of  Treason  shall  work  Corruption 
of  Blood,  or  Forfeiture  except  during  the  Life  of  the  Person 
attainted. 

Article.  IV. 

Section  r.  Full  Faith  and  Credit  shall  be  given  in  each  State 
to  the  public  Acts,  Records,  and  judicial  Proceedings  of  every 
other  State.  And  the  Congress  may  by  general  Laws  prescribe 
the  Manner  in  which  such  Acts,  Records  and  Proceedings  shall 
be  proved,  and  the  Effect  thereof. 

Section  2.  [i]  The  Citizens  of  each  State  shall  be  entitled 
to  all  Privileges  and  Immunities  of  Citizens  in  the  several  States. 

[2]  A  Person  charged  in  any  State  with  Treason,  Felony  or 
other  Crime,  who  shall  flee  from  Justice,  and  be  found  in  another 
State,  shall  on  Demand  of  the  executive  Authority  of  the  State 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  Jurisdiction  of  the  Crime. 

[3]  No  Person  held  to  Service  or  Labour  in  one  State,  under 
the  Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of 
any  Law  or  Regulation  therein,  be  discharged  from  such  Service 
or  Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party  to 
whom  such  Service  or  Labour  may  be  due. 

Section  3.  [i]  New  States  may  be  admitted  by  the  Congress 
into  this  Union ;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State ;  nor  any  State  be 
formed  by  the  Junction  of  two  or  more  States,  or  Parts  of  States, 
without  the  Consent  of  the  Legislatures  of  the  States  concerned 
as  well  as  of  the  Congress. 

[2]  The  Congress  shall  have  Power  to  dispose  of  and  make 
all  needful  Rules  and  Regulations  respecting  the  Territory  or 
other  Property  belonging  to  the  United  States ;  and  nothing  in 
this  Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims 
of  the  United  States,  or  of  J'ny  particular  State. 

Protection  of       Section  4.   The  United  States  shall  guarantee  to  every  State  in 
states.  this  Union  a  Republican  Form  of  Government,  and  shall  protect 


Nation 

AND  States. 

Interstate 

comity 

(of.  A.  of  C, 

Art.  IV8). 

Interstate 

citizenship 
(of.  A.  of  C, 
Art.  I VI). 

Extradition 
of  criminals, 
(cf.  A.  of  C, 
Art.  IV2.) 

Fugitive 
slaves. 


Admission  of 
new  states 
(cf.  A.  of  C. 
Art  XI). 


Government 
of  national 
territory. 


Appendix  B 


553 


each  of  them  against  Invasion ;  and  on  Application  of  the  Legis- 
lature, or  of  the  Executive  (when  the  Legislature  cannot  be  con- 
vened) against  domestic  Violence. 


Article.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  Amend- 
it  necessary,  shall  propose  Amendments  to  this  Constitution,  or,    ment  of 
on  the  Application  of  the  Legislatures  of  two  thirds  of  the  several 
States,   shall   call  a  Convention    for    proposing   Amendments,    (cf,  A.  ofC. 
which,  in  either  Case,  shall  be  valid  to  all  Intents  and  Purposes   Art.  XIII). 
as  Part  of  this  Constitution,  when  ratified  by  the  Legislatures  of 
three  fourths  of  the  several  States,  or  by  Conventions  in  three 
fourths  thereof,  as  the  one  or  the  other  Mode  of  Ratification  may 
be  proposed  by  the  Congress ;    Provided    that   no  Amendment 
which  may  be  made  prior  to  the  Year  One  thousand  eight  hun- 
dred and  eight  shall  in  any  Manner  affect  the  first  and  fourth 
Clauses  in  the  Ninth  Section  of  the  first  Article ;  and  that  no 
State,  without  its  Consent,  shall  be  deprived  of  its  equal  Suffrage 
in  the  Senate. 


Article.  VI. 

[i]  All  Debts  contracted  and  Engagements  entered  into,  be- 
fore the  Adoption  of  this  Constitution,  shall  be  as  valid  against 
the  United  States  under  this  Constitution,  as  under  the  Confeder- 
ation. 

[2]  This  Constitution,  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof;  and  all  Treaties 
made,  or  which  shall  be  made,  under  the  Authority  of  the 
United  States,  shall  be  the  supreme  Law  of  the  Land ;  and 
the  Judges  in  every  State  shall  be  bound  thereby,  any  Thing 
in  the  Constitution  or  Laws  of  any  State  to  the  Contrary  not- 
withstanding. 

[3]  The  Senators  and  Representatives  before  mentioned,  and 
the  Members  of  the  several  State  Legislatures,  and  all  executive 
and  judicial  Officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Affirmation,  to  support  this 
Constitution ;  but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the  United 
States. 


Miscella- 
neous. 
Preexisting 
national 
debt 

(cf.  A.  of  C. 
Art.  XII). 

Supremacy 
of  Constitu- 
tion, treaties, 
and  national 
law. 

Oaths  of 
national  and 
state  officials. 


554 


The  American  Federal  StaU 


Article.  VII. 

Ratification.  The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  Establishment  of  this  Constitution  between  the 
States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of  September  in  the  Year  of  our 
Lord  one  thousand  seven  hundred  and  Eighty  seven  and  of  the 
Independence  of  the  United  States  of  America  the  Twelfth 
In  Witness  whereof  We  have  hereunto  subscribed  our  Names, 

G?  Washington - 
Presidt.  and  Deputy  from  Virginia 
[and  thirty  eight  members  from  all  the  states  except  Rhode  Island.] 


Prohibitions 
on  Congress 
respecting 
religion, 
speech,  and 
the  press. 


Right  to  bear 
arms. 


Quartering 
of  soldiers. 


ARTICLES  IN  ADDITION  TO,  AND  AMENDMENT  OF, 
THE  CONSTITUTION  OF  THE  UNITED  STATES 
OF  AMERICA,  PROPOSED  BY  CONGRESS,  AND 
RATIFIED  BY  THE  LEGISLATURES  OF  THE  SEV- 
ERAL STATES  PURSUANT  TO  THE  FIFTH  ARTI- 
CLE  OF  THE   ORIGINAL   CONSTITUTION. 

[Article  I*] 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging  the 
freedom  of  speech,  or  of  the  press ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Government  for  a  re- 
dress of  grievances. 

[Article  IP] 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a 
free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall 
not  be  infringed. 

[Article  IIP] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

1  First  ten  amendments  proposed  by  Congress,  Sept  aj,  X789.  Pro- 
claiqaed  to  be  in  force  Dec.  i^,  1791, 


Appendix  B 


555 


[Article  IV  ^] 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon 
probable  cause,  supported  by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things  to 
be  seized. 

[Article  V^] 

No  person  shall  be  held  to  answer  for  a  capital,  or  otherwise 
Infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
Grand  Jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  public 
danger ;  nor  shall  any  person  be  subject  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled 
in  any  Criminal  Case  to  be  a  witness  against  himself,  nor  be  de- 
prived of  life,  liberty,  or  property,  without  due  process  of  law ; 
nor  shall  private  property  be  taken  for  public  use,  without  just 
compensation. 

[Article  VI*] 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  Witnesses  in  his  favor,  and  to  have  the 
Assistance  of  Counsel  for  his  defence. 


Right  of 
search. 


Protection 
of  accused 
in  criminal 
cases. 


Rights  of 
accused  re- 
garding triaL 


[Article  VIP] 

In  suits  at  common  law,  where  the  value  in  controversy  shall  Jury  trial  in 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre-  lawsuits, 
served,  and  no  fact  tried  by  a  jury  shall  be  otherwise  re-exam- 
ined in  any  Court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law. 


[Article  VHP] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  im-  Bail  and 
posed,  no""  cruel  and  unusual  punishments  inflicted.  punishment. 


556 


The  American  Federal  State 


[Article  IX*] 

Unenumer-         The  enumeration  in  the  Constitution,  of  certain  rights,  shall 
ated  rights.      jjot  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 

[Article  X*] 

Undelegated       The  powers  not  delegated  to  the  United  States  by  the  Consti- 
powers.  tution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 

States  respectively,  or  to  the  people. 


Exemption 
of  states  from 
suit.     (Pro- 
posed Sept.  5, 
1794.    De- 
clared in 
force  Jan.  8, 
1798.) 

New  method 
of  electing 
President. 

(To  super- 
sede part  of 
Art.  II,  Sec. 
I.  cl.  2.) 

(Proposed 
Dec.  12, 1803. 
Declared  in 
force  Sept.  25, 
1804.) 


Article  XI 

The  Judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  Citizens  of  another  State,  or 
by  Citizens  or  Subjects  of  any  Foreign  State. 

Article  XII 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  state  with  themselves ; 
they  shall  name  in  their  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice-President, 
and  they  shall  make  distinct  lists  of  all  persons  voted  for  as 
President,  and  of  all  persons  voted  for  as  Vice-President,  and 
of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate;  —  The 
President  of  the  Senate  shall,  in  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates  and  the  votes 
shall  then  be  counted ;  —  The  person  having  the  greatest  number 
of  votes  for  President,  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed  ;  and  if  no 
person  have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  im- 
mediately, by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent, the  votes  shall  be  taken  by  states,  the  representation  from 
each  state  having  one  vote ;  a  quorum  for  this  purpose  shall  con- 


Appendix  B 


557 


sist  of  a  member  or  members  from  two-thirds  of  the  states,  and  a 
majority  of  all  the  states  shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice-President 
shall  act  as  President,  as  in  the  case  of  the  death  or  other  con- 
stitutional disability  of  the  President.  The  person  having  the 
greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed,  and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall  choose  the 
Vice-President ;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be  eli- 
gible to  that  of  Vice-President  of  the  United  States. 


Article  XIII 

Section  i .   Neither  slavery  nor  involuntary  servitude,  except  as  Abolition  of 

a  punishment  for  crime  whereof  the  party  shall  have  been  duly  slavery, 

convicted,  shall  exist  within  the  United  States,  or  any  place  sub-  1  L'^^^'^^gge 

jiCt  to  their  jurisdiction.  Declared  in 

force  Dec.  i8, 

Section  2.   Congress  shall  have  power  to  enforce  this  article  1865.) 
by  appropriate  legislation. 


Article  XIV 

Section  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States ;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law  ;  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws. 


Citizens  of 
the  United 
States  —  pro- 
tection of. 
(Proposed 
June  16. 1866. 
Declared  in 
force  July  28, 
1868.) 


Section  2.   Representatives  shall  be  apportioned  among  the  New  basis  of 

several  States  according  to  their  respective  numbers,  counting  representa- 

the  whole  number  of  persons  in  each  State,  excluding  Indians  |!.°"  '" 

**  Congress, 
not  taxed.     But  when  the  right  to  vote  at  any  election  for  the 


558 


Appendix  B 


(Superseding 
part  of  Art  I, 
sec  a,  d.  3.) 


Disabilities 
of  officials 
engaged  in 
rebellion. 


Validity  of 
war  debt 


choice  of  electoi^  for  President  and  Vice  President  of  the  United 
States,  Representatives  in  Congress,  the  Executive  and  Judicial 
officers  of  a  State,  or  the  members  of  the  Legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State,  being  twenty- 
one  years  of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion,  or  other  crime,  the 
basis  of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice  President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under 
any  State,  who,  having  previously  taken  an  oath,  as  a  member  of 
Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may 
by  two-thirds  vote  of  each  House,  remove  such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.  But  neither  the  United 
States  nor  any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave ; 
but  all  such  debts,  obligations  and  claims  shall  be  held  illegal 
and  void. 

Section  5.  The  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article. 


Voting  rights 
of  citizens  of 
the  U.S. 
(Proposed 
Feb.  27, 1869. 
Declared  in 
force  Mar.  30, 
1870.) 


Article  XV 

Section  i.  The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color  or  previous  condition  of  servitude. 

Section  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 


APPENDIX  C 

PROMINENT  NATIONAL  OFFICIALS 

TABLE  I— THE  PRESIDENTS 


Name 

State 

Party 

Electoral  Vote 

Years 

in  Office 

I.  George  Washington 

Va. 

(Fed.) 

unanimous 
unanimous 

I 789-1 793 
I 793-1 797 

2.  John  Adams 

Mass. 

Fed. 

71  to  68 

1797-1801 

3.  Thomas  Jefferson 

Va. 

Dem.  R. 

73  to  65 
162  to  14 

1801-1805 
1805-1809 

4.  James  Madison 

Va. 

Dem.  R. 

122  to  47 
128  to  89 

1809-1813 
1813-1817 

5.  James  Monroe 

Va. 

Dem.  R. 

183  to  34 
231  to  I 

1817-1821 
1821-1825 

6.  John  Q.  Adams 

Mass. 

Dem.  R. 

84  out  of  261 

1825-1829 

7.  Andrew  Jackson 

Tenn. 

Dem, 

178  to  83 
219  to  49 

1829-1833 
I 833-1 837 

8.  Martin  Van  Buren 

N.Y. 

Dem. 

170  to  73 

1837-1841 

9.  Wm.  H.  Harrison 

Ohio 

Whig 

234  to  60 

1841-1841 

10,  John  Tyler  1 

Va. 

(Whig) 

1841-1845 

11.  James  K.  Polk 

Tenn, 

Dem. 

170  to  105 

I 845- I 849 

12.  Zachary  Taylor 

La. 

Whig 

163  to  127 

1849-1850 

13.  Millard  Fillmore  ^ 

N.Y. 

Whig 

1850-1853 

14.  Franklin  Pierce 

N.H. 

Dem. 

254  to  42 

1853-1857 

15.  James  Buchanan 

Pa. 

Dem, 

174  to  114 

1857-1861 

16.  Abraham  Lincoln 

111. 

Rep. 

180  to  123 
212  to  21 

1861-1865 
1865-1865 

17.  Andrew  Johnson  1 

Tenn. 

(Rep.) 

1865-1869 

18.  Ulysses  S.  Grant 

111. 

Rep. 

214  to  80 

286  to  63 

1869-1873 
1873-1877 

19.  Rutherford  B.  Hayes 

Ohio 

Rep. 

185  to  184 

1877-1881 

20.  James  A.  Garfield 

Ohio 

Rep. 

214  to  155 

1881-1881 

21.  Chester  A.  Arthur  » 

N.Y. 

Rep. 

1881-1885 

22.  Grover  Cleveland 

N.Y. 

Dem. 

219  to  182 

1885-1889 

23.  Benjamin  Harrison 

Ind. 

Rep. 

233  to  168 

18S9-1893 

24.  Grover  Qeveland 

N.Y. 

Dem. 

277  to  167 

1893-1897 

25.  William  McKinley 

Ohio 

Rep. 

271  to  176 
292  to  155 

1897-1901 
1901-1901 

26.  Theodore  Roosevelt* 

N.Y. 

Rep. 

1901- 

*  Raised  from  the  vice-presidency. 
560 


Appendix  C 


561 


TABLE  II  — CHIEF   JUSTICES    OF   THE   SUPREME  COURT 


Name 

Sute 

Years 
in  Office 

1.  John  Jay 

2.  John  Rutledge 

3.  Oliver  Ellsworth 

4.  John  Marshall 

5.  Roger  B.  Taney 

6.  Salmon  P.  Chase 

7.  Morrison  R.  Waite 

8.  Melville  W.  Fuller 

New  York 

South  Carolina 

Connecticut 

Virginia 

Maryland 

Ohio 

Ohio 

Illinois 

I 789-1 795 

1 795-1 795 
1796-1800 
1801-1835 
1836-1864 
1864-1873 
I 874- I 888 
1888- 

TABLE  III  — SPEAKERS  OF  THE  HOUSE  SINCE   1861 


Name 

Congress 

State 

Party 

Years 
in  Office 

I.    Galusha  A.  Grow     .... 

37 

Pa. 

Rep. 

1861-1863 

2.    Schuyler  Colfax   . 

38-40 

Ind. 

Rep. 

I 863- I 869 

3.   James  G.  Blaine  . 

4«-43 

Me. 

Rep. 

1869-1875 

4.   Michael  C.  Kerr  . 

44 

Ind. 

Dam. 

1875-1876 

5.    Samuel  J.  Randall 

44-46 

Pa. 

Dem. 

1 876-1 881 

6.   John  W.  Keifer   . 

47 

Ohio 

Rep. 

1881-1883 

7.    John  G.  Carlisle  . 

48-50 

Ky. 

Dem. 

I 883- I 889 

8.  Thomas  B.  Reed 

51 

Me. 

Rep. 

I 889-1 891 

9.   Charles  F.  Crisp  . 

52-53 

Ga. 

Dem. 

1891-1895 

10.  Thomas  B.  Reed 

54-55 

Me. 

Rep. 

1895-1899 

II.   David  B.  Henderson 

5^57 

la. 

Rep. 

1899- 

20 


APPENDIX  D 

THE  STATES  — AREA  AND  POPULATION 


Became 
Member 

Area 

Population 

Electoral 
Vote 

State 

of 

Square 
Miles 

Union 

1890 

1900 

1890 

1900 

Maine 

1820 

33.040 

661,086 

694,466 

6 

6 

New  Hampshire 

1788 

9.305 

376.530 

411,588 

4 

4 

Vermont 

I791 

9.565 

332422 

343.641 

4 

4 

Massachusetts 

1788 

8.315 

2,238,943 

2,805,346 

15 

16 

Rhode  Island 

1790 

1,250 

345.506 

428,556 

4 

4 

Connecticut 

1788 

4.990 

746,258 

908,355 

6 

7 

New  York 

1788 

49,170 

5,997.853 

7,268,012 

36 

39 

New  Jersey 

1787 

7,81s 

1.444.933 

1.883,669 

10 

12 

Pennsylvania 

1787 

45.215 

5,258,014 

6,302,115 

32 

34 

Delaware 

1787 

2,050 

168,493 

184.735 

3 

3 

Maryland 

1788 

12,210 

1,042,390 

1,190,050 

8 

8 

West  Virginia 

1863 

24,780 

762,794 

958,800 

6 

7 

Virginia 

1788 

42,450 

1,655,980 

1,854,184 

12 

12 

North  Carolina 

1789 

52,250 

1,617,947 

1,893,810 

II 

n> 

South  Carolina 

1788 

30,570 

1,151,149 

1,340,316 

9 

9 

Georgia 

1788 

59.475 

1,837,353 

2,216,331 

13 

13 

Florida 

1845 

58,680 

391,422 

528,542 

4 

5 

Alabama 

1819 

52,250 

1,513.017 

1,828,697 

II 

II 

Mississippi 

1817 

46,810 

1,289,600 

1,551,270 

9 

10 

Louisiana 

1812 

48,720 

1,118,587 

1,381,625 

8 

9 

Texas 

1845 

265,780 

2,235,523 

3,048,710 

15 

18 

Arkansas 

1836 

53.850 

1,128,179 

1.311,564 

8 

9 

Tennessee 

1796 

42,050 

1,767,518 

2,020,616 

12 

12 

Kentucky 

1792 

40,400 

1,858,635 

2,147.174 

13 

13 

Ohio 

1803 

41,060 

3,672,316 

4.157.545 

23 

23 

Indiana 

1816 

36,350 

2,192,404 

2,516,462 

15 

15 

Illinois 

1818 

56,650 

3.826,351 

4,821,550 

24 

27 

Michigan 

1837 

48.915 

2,093,889 

2420,982 

'4 

14 

Wisconsin 

1848 

56,040 

1,686,880 

2,069,042 

12 

»3 

Minnesota 

1858 

83.365 

1,301,826 

I.751.394 

9 

II 

Iowa 

1846 

56.025 

1,911,896 

2,231,853 

13 

»3 

562 


Appendix  D 


563 


THE  STATES— AREA  AND  POPULATION.  —  C<7«/j«M^fl' 


Sute 

Became 
Member 

of 
Union 

Area 
Square 
Miles 

Population 

Electoral 
Vote 

1890 

1900 

1890 

1900 

Missouri 

Kansas 

Nebraska 

South  Dakota 

North  Dakota 

Montana 

Wyoming 

Colorado 

Utah 

Nevada 

Idaho 

Washington 

Oregon 

California 

1821 
1861 
1867 
1889 
1889 
1889 
1890 
1876 
1896 
1864 
1890 
1889 

1859 
1850 

69,415 
82,080 

77,510 

77,650 

70,795 

146,080 
97,890 

103,925 
84,970 

110,700 
84,800 
69,180 
96,030 

158,360 

2,679,184 

1427,096 

1,058,910 

328,808 

182,719 

132,159 
60,705 

412,198 

207,905 
45.761 
84.385 

349.390 

313.767 
1,208,130 

3,106,665 

1,470,495 

1,068,539 

401,570 

319,146 

243.329 

92.531 

539.700 

276,749 

42,335 
161,772 
518,103 

413.536 
1,485,053 

17 
10 
8 
4 
3 
3 
3 
4 

3 
3 
4 
4 
9 

18 
10 
8 
4 
4 
3 
3 
5 
3 
3 
3 
5 
4 
10 

Total  states 

2,784,677 

62,116,811 

74,610,523 

444 

476 

Territory 


District  of  Columbia 
Indian  Territory  . 
Oklahoma  .  .  . 
New  Mexico  .  . 
Arizona  .... 
Alaska  .... 
Hawaii  .... 
Porto  Rico  .  .  . 
Philippines  .    .     . 


Area 
Square  Miles 


70 

31.400 

39.030 

122,580 

113,020 

577,390 

6,740 

3.600 

114,000 


Population 


1890 


230,392 

180,182 

61,834 

153.593 
59,620 
32.052 
89,990 


278,718 
391,960 

398.245 
195.310 
122,931 

63441 
154,001 

957.679 
7,000,000 


APPENDIX   E 

THE   STATE   CONSTITUTIONS 

TABLE  I  — METHOD  OF  ADOPTION  (i 776-1900) 


Without  Popular  Ratification 

With  Popular  Ratification 

State 

1776- 
181S 

1815- 
1845 

1845- 
1870 

1870- 
1900 

1776- 
181S 

1815- 
184s 

184s- 
1870 

1870- 
1900 

1820 

(187s) 

New  Hampshire. 
Vermont 

1776 

(  1786 
1793 

J 1784 
•1792 

Massachusetts. . . 

1780 

Rhode  Island.. . . 

1842 
1818 
1821 
1844 

1838 

Connecticut 

New  York 

1777 
1776 
J  1776 
(  1790 
J  1776 
(  1792 

1776 

1846 

1894 

(1875) 

1873 

New  Jersey 

Pennsylvania. . . . 

Delaware 

1831 

1897 

Maryland 

]i864 
1 1867 

1862 
11850 
J1869 

iJ68 

1868 

(i86s 
1  1868 

1868 
1867 
1868 

1872 

Virginia 

1776 

1776 
/-1776 
JI778 
(1790 

1777 

•   1789 
(.1798 

1829 

North  Carolina. . 

1875 

South  Carolina. . 

1865 

1895 

Georgia 

1877 

Florida 

1845 
1819 
1817 

1865 
1865 

1885 

Alabama 

187s 

Mississippi 

1890 

1832 

564 


Appendix  E 


56s 


THE  STATE  CONSTITUTIONS.  —  C<7»A««tf</ 


Without  Popular  Ratification 

With  Popular  Ratification 

Sutc 

1777- 
1815 

1815- 

184s 

1845- 
1870 

1870- 
1900 

1776- 
1815 

1815- 
1845 

1845- 
1870 

1870- 
1900 

1812 

1898 

1845 
1845 

f  1852 
(1868 
(  1866 
1  1868 
(  1864 
1  1868 
1870 

1850 

1851 
1851 
(  1848 
1870 
1850 
1848 

1857 
1  1846 

1857 
1865 

1859 
1867 

Texas 

187s 
1874 

Arkansas 

1836 

Tennessee 

1796 
f  1792 

(  1799 
1802 

1834 

Kentucky 

1 891 

Ohio 

Indiana 

1816 
1818 

Illinois 

1837 

Missouri 

1820 

187s 

Kansas 

Nebraska 

187s 
1889 
1889 
1889 
1889 
1876 
189s 

South  Dakota  . . 

North  Dakota. .. 

Montana 

Wyoming 

Colorado 

Utah 

Nevada 

1864 

Idaho 

1889 
1889 

Washington 

Oregon 

1857 
1849 

California 

1879 

The  dates  given  above  are  the  years  in  which  the  constitutions  were 
adopted,  and  not  the  ones  in  which  they  went  into  force. 


566 


The  American  Federal  State 


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INDEX 


Abolitionists,  the,  i6o. 

Adams,  C.  F.,  516. 

Adams,   H.  C,  Science  of  Finance, 

quoted,  262. 
Adams,  John    (President),  76,  121, 

126,  515 ;  letter  of,  104. 
Adams,   John   Q.    (President),   139, 

263.  441- 

Adams,  Samuel,  73. 

Administration :  centralization  of 
national,  284;  decentralization  of 
state,  356,  387-389,  advantages 
of  same,  390 ;  state  boards  of,  359 ; 
city  boards  of,  410. 

Administrative  law,  23,  208. 

Agriculture,  department  of,  312. 

Alabama :  state  of,  136 ;  government 
in,  376,  426. 

Alabama  claims,  517. 

Alaska:  purchase  of,  373;  govern- 
ment of,  521. 

Albany  plan  of  Union,  63. 

Alien  Act  (1798),  126. 

Almshouse,  the  county,  398, 

Amendment.     See  Constitution. 

American  Association,  the,  75. 

American  System,  141,  501. 

Andros,  Edmund,  62. 

Angevin  kings,  34-35. 

Anglo-Saxons.     See  England. 

Annapolis  Conference,  the,  92. 

Anti-federalists,  the,  100. 

Anti-trust  laws  :  of  the  states,  184, 508- 
509;  of  the  United  States  (1890) 
184.  505- 

Appointments:  historical,  237,  290, 
393 ;  by  the  President  and  Senate, 
237,  391,  294-295,  334;  in  cities, 
411;  in  all  governments,  452. 


Apportionment  of  United  States  rep- 
resentatives, 246-247. 
Aristocracy,  definition  of  an,  7. 
Army,  control  of,  270. 
Assessors,  county,  396. 
Attorneys,  county,  396. 
Attorney-general,  duties  of,  312. 
Attorney-generals,  state,  358. 
Auditors :  county,  395 ;  city,  409. 
Australian  ballot,  188,  428-429. 

Bagehot.WaltER,  reference  to,  330. 

Ballot :  history  of  the,  428 ;  the  Aus- 
tralian, 428-429. 

Bank,  national  :  the  first,  organized, 
123;  the  second,  chartered,  136; 
controversy  over  second,  145. 

Banking  system,   national,  492,  493. 

Bankruptcy  laws,  201,  278. 

Bicameral  legislatures  in  Europe  and 
America,  225. 

Bills  of  Rights:  early  state,  79;  in 
national  Constitution,  102,  457- 
461 ;    in    state    constitutions,   349, 

457.  461-464- 

Bills,  distinguished  from  orders  and 
resolutions,  229. 

Bimetallism,  486-490. 

Blackstonc's  Commentaries,  14. 

Blaine,  James  G.,  443,  443. 

Bland-Allison  Bill,  186,  49a 

"  Body  of  Liberties,"  the,  50. 

Bonds,  sale  of,  269. 

Boss,  the  political  party,  142,  447. 

Boston  Tea  Party,  the,  74. 

Bryan,  William  J.,  443,  444. 

Bryce,  James,  The  American  Com- 
monwealth, references  to,  in,  355, 
393. 


^  The  index  covers  only  the  numbered  sections  of  the  text,  all  references  being  to 
pages.  Where  the  reference  cover*  more  than  three  pages,  the  Topical  Analysis 
should  be  consulted. 


590 


Index 


BuncUsstaat,  a,  8. 

Burgess,  John  W.,  quoted,  159,  215, 

Burr,  Aaron,  127. 

Cabinet  government:  nature  of, 
16, 40, 328 ;  development  of,  40 ;  ad- 
vantages of,  329 ;  disadvantages  of, 

330- 

Cabinet,  the  American :  organized, 
119;  comjjosition  now,  303 ;  mem- 
bers of,  in  Congress  (proposed)  338. 
See  Topical  Analysis,  chap.  XV. 

Calhoun,  John  C,  144. 

California :  admission  of,  i6i ;  gov- 
ernment of,  406,  407,  425,  467. 

Campaign,  the  political :  first  used, 
142 ;  present  methods,  287. 

Canning,  George,  139. 

Carolina,    colonial    government    of, 

47.  56. 

"  Carpet  bag  "  government,  176. 

Caucuses,  use  of  party,  230,  234. 

Census  bureau,  the,  310. 

Centralization  in  government:  in 
general,  16,  198 ;  in  the  United 
States,  198-200. 

Charities,  public,  397-399. 

Charles  I,  48. 

Charters:  colonial,  44,  45;  of  1606, 
45 ;  of  Virginia,  46 ;  of  New  Eng- 
land, 49-51 ;  importance  of,  53. 

Charters,  city,  405-407. 

Checks  and  balances  in  the  United 
States  government,  16,103, 104. 331- 

Cherokee  Case,  144. 

Chisholm  v.  Georgia,  120. 

Church  and  State :  in  England,  33 ; 
in  America,  49;  final  separation 
of,  140. 

Circuit  Court,  national,  120,  325. 

Circuit  Courts  of  Appeals,  324. 

Citizen  of  a  state,  rights  of,  216,  217, 

Citizen  of  United  States:  status  of, 
215;  privileges  of,  216. 

Citizenship:  in  ancient  and  modem 
States,  9;  in  United  States,  dual 
character  of,  212,  controversies 
over,  213;  duties  of,  525-530. 

City  government :  in  England,  37 ; 
in  America  before  i860,  152.  At 
present,  see  Topical  Analysis,  chap. 
XXI. 

City  State,  7. 


Civil  Rights  Bill,  the,  172,  214. 

Civil  Rights  Cases,  the,  175. 

Civil  Rights  in  the  Uniied  States. 
See  Topical  Analysis,  chap.  XXIV. 

Civil  service  reform,  189,  295,  411 ; 
national  Commission  of,  313. 

Civil  War:  causes  of,  164;  begin- 
nings of,  167 ;  progress  of,  168-170, 
516;  influences  of,  171-182. 

Claims,  court  of,  325. 

Clay,  Henry,  141,  263,  441,  442. 

Clerks,  coimty,  395. 

Cleveland,  Grover  (President),  189, 

297.  443.  448,  502.  519- 

Coast  defence,  272. 

Coinage,  270,  279,  489,  490,  492-494. 

Colonies :  see  Topical  Analysis,  chap. 
Ill;  control  of  present,  by  United 
States,  190,  520-523. 

Columbia,  District  of:  slavery  in, 
160 ;  government  of,  274. 

Comity,  interstate,  369. 

Commerce  :  need  of  national  control 
in  1787,  99,  276;  development  of, 
after  Civil  War,  217;  control  of, 
by  Congress,  276-278.  See  Rail- 
ways. 

Commercial  treaties,  277. 

Commissioners,  county,  52,  394,  395. 

Committees,  conference,  230. 

Committees,  congressional :  in  the 
Senate,  235,  236;  in  the  House, 
254;  criticism  of,  255;  advantages 
of,  256. 

Committees  of  the  whole :  historical 
use  of,  94-96,  297;  at  present,  257. 

Committees  of  Correspondence,  73. 

Committees,  political  party :  work  of, 
444-445 ;  of  the  nation,  445  ;  of  the 
state  and  localities,  446.  See  also 
Machine. 

Commons,  House  of,  35,  36,  40,  328- 

329- 

Compromises :  need  for,  96 ;  over 
composition  of  Congress,  96  ;  over 
counting  of  slaves,  97 ;  over  slave 
trade  and  navigation  acts,  98 ;  over 
assumption  of  state  debts,  122; 
over  slavery  in  Missouri,  137 ;  over 
slavery  (1850),  161. 

Confederacy,  character  of  a,  7. 

Confederacy,  Southern,  164,  168,  516. 

Confederation,  Articles  of,  80-83. 


Index 


591 


Confederation,  the :  fonnation  of,  80 ; 
character  of,  81;  defects  of,  82; 
failure  of,  83 ;  revenue  under,  269. 

Confederation,  the  New  England,  62. 

Congresses,  early:  Albany  (1754), 
63;  Stamp  Act  (1765),  72;  First 
Continental  (1774),  74;  Second 
Continental  (1775),  powers  exer- 
cised, 75;  authority  of,  76;  de- 
clares independence,  77. 

Congress  of  the  Confederation :  com- 
position and  powers  of,  81;  decay 
of,  82;  lack  of  financial  power  of, 
83;  position  regarding  constitu- 
tional convention,  92 ;  end  of,  102. 

Congress,  United  States;  composi- 
tion of,  in  Virginia  plan,  95 ;  present 
composition  of,  224  :  powers  of,  in 
outline,  107,  205-207;  limitations 
upon  powers  of,  no,  210,211;  im- 
plied powers  of,  123,  139,  206;  and 
the  judiciary,  321-322.  338,  339; 
and  the  President,  171-173,  191, 
270,  296-299,  332-338.  See  also 
Topical  Analysis,  chaps.  XI-XIII. 

Congressmen:  privileges  of,  227; 
pay  of,  228. 

Conkling,  Roscoe,  443. 

Connecticut :  colony  of,  50, 51, 54, 56 ; 
state  of,  79,  101,  140;  government 

Jn.  355.  357.  425- 

Constitutional  law,  23. 

Constitution :  general  nature  of  a, 
11;  distinction  between  a  written 
and  unwritten,  11;  relation  of  a 
written  to  its  unwritten,  12,  192- 
193 ;  development  of  a  written  in 
America,  53-55,  64,  79,  93-100. 
See  Unwritten  constitution. 

Constitution  of  the  United  States: 
formation  of,  93-100;  ratification 
of,  100-102 ;  character  of,  102-104  '< 
national  theory  of,  104,  105,  145; 
compact  theory  of,  105,  164;  pro- 
visions of,  106-110;  sources  of,  iio- 
III ;  method  of  amendment  of,  99, 
219;  first  ten  amendments  of, 
102;  XI  amendment  of,  120;  XII 
amendment  of,  127;  XIII  amend- 
ment of,  174;  XIV  amendment  of, 
174,  213-215,  246 ;  XV  amendment 
of,  174 ;  loose  construction  of,  123, 
I39i    205;    strict    construction  of, 


123;  interpretation  of,  316-319; 
rights  guaranteed  by,  457-461. 

Constitutions  of  the  states :  first,  78- 
80;  second  period  of,  131 ;  third 
period  of,  147;  historical  develop- 
ment of,  346-347  ;  process  of 
forming,  347;  amendment  of, 
348  ;    contents  of,  348. 

Consular  service,  305. 

Contracts:  interstate  law  regarding, 
370;    non-impairment  of,  139,  461. 

Controller  of  the  Currency,  the,  310. 

Controllers,  state,  358. 

Conventions,  nominating :  first  used, 
141 ;  national,  287,  447-448 ;  state 
and  local,  449. 

Conventions,  constitutional :  of  1787, 
91-100 ;  of  the  states,  79,  346-348. 

Copyright,  309, 

Coroners,  county,  396. 

Corporations:  consolidation  of,  183, 
507 ;  control  of,  184,  506-509 ;  di- 
verse state  laws  regarding,  368. 

Corporations,    public,    definition  of, 

392.  394- 

Corporation  taxes,  368,  480. 

Council,  municipal :  history  of,  405 ; 
organization  of,  407;  powers  of, 
408. 

County  government:  in  England, 
32,  36;  in  colonial  America,  45, 
48,  52;  changes  in,  after  1800, 152; 
home  rule  in,  389 ;  at  present,  394- 
396. 

Courts.      See  Judiciary. 

Crime :  diversities  in  state  laws  re- 
garding, 368  ;  methods  used  for 
punishment  of,  378-381. 

"  Crime  of  1873,"  ^86,  490. 

Criminal  law,  23. 

Crown.    See  King. 

Cuba,  relations  with,  189. 

Currency:  before  Civil  War,  181; 
since  Civil  War,  181,  186.  See 
Topical  Analysis,  chap.  XXVI. 

Custom  as  a  form  of  law,  21. 

Customs  duties,  as  a  tax,  475.  Set 
also  Tariffs. 

Dartmouth   College    Case. 

139. 
Debts,   public:    debate   upon,    122; 
municipal,  417. 


S93 


Index 


Deolaratory  act,  the,  73. 
Declaration  of  Independence,  76-78. 
Declarations    of    Rights   (1765)    72, 

(1774)  74. 
Delaware:   colony  of,  55;   state  of, 
loi ;  government  in,  346,  348,  361, 

425. 

Democracy:  definition  of,  7;  differ- 
ence, between  a  pure  and  a  repre- 
sentative, 15;  modern  develop- 
ment of,  27 ;  increase  of,  in  United 
States,  127, 13s,  147-153,  186-187, 
194,  346-347.  432-435- 

Democratic  party:  before  1861,162, 
164,  440,  441 ;  since  1861,  442-444. 

Democratic-Republican  party,  124, 
125, 127, 130,  136,  440. 

Departments.  See  Government ; 
Congress ;  President ;  State ;  Treas- 
ury, etc. 

Diplomacy:  of  the  past,  515-520; 
of  the  future,  220,  515. 

Diplomatic  service :  304 ;  reform  of, 

305. 
Dispensaries,  free,  398. 
Dispensary,  the  South  Carolina,  376. 
District  of  Columbia,  160, 161,  274. 
District  courts,  national,  325. 
Divine  right  theory  of  the  State,  4. 
Divorce  laws,  diversities  in,  367. 
Docks,  municipal  ownership  of,  415. 
Oouglas,  Stephen  A.,  162. 
Dred  Scott  Case,  163. 

Education:  and  democracy,  151; 
national  commissioner  of,  310; 
state  superintendents  of,  358,  373 ; 
state  boards  of,  372 ;  county  boards 
of«  373;  county  superintendents 
of,  396;  city  boards  of,  373,  410- 
411. 

Educational   land  grants,  151,  308, 

371.  374- 

Edward  the  Confessor,  33. 

Egbert,  King,  32. 

Elastic  clause,  the,  108,  280-281. 

Elections :  registration  for,  427 ;  bal- 
lots used  in,  428;  voting  at,  429- 
430. 

Elections,  presidential  :  of  1800,  127, 
262;  of  1824,  263;  of  1828,  143; 
of  1856, 162 ;  of  i860, 164 ;  of  1876, 
176 ;  of  1880, 442 ;  of  1888  and  1892, 


185,  443;  of  1896,  186.  443;  of 
1900,444. 

Electoral  "  College,"  the,  99,  388. 

Electoral  Commission,  176,  289. 

Electoral  Count  Bill,  289. 

Electric  lighting  of  cities,  414. 

Elmira  plan  of  reforming  criminals, 
380. 

Emancipation :  before  1787,  86, 103 ; 
before  1845,  159;  the  Proclama- 
tion of,  169;  by  XIII  amendment, 

174. 

Embargoes,  failure  of,  129. 

Eminent  Domain,  use  of,  412,  463. 

England :  constitutional  development 
in,  31-41 ;  and  the  colonies,  58- 
59,  68-77;  constitution  of,  com- 
pared with  American  system  of 
government,  64-65,  327-332;  dip- 
lomatic relations  of,  with  United 
States,  515-519. 

Equality,  kinds  of,  24. 

Equalization,  boards  of,  480. 

Equity:  courts  of,  360,  511;  nature 
of,  465. 

Evolution  as  a  process  of  growth,  35. 

Ex  post  facto  laws,  no,  458. 

Executive  councils,  state,  358. 

Executive  department,  work  of  the, 

17- 
Executive  departments :   see  Topical 

Analysis,  chap.  XV;    relation  to 

Congress,  332. 
Executive   sessions   of  the   Senate, 

226. 

Factory  legislation,  510. 

Federal  State:  definition  of  a,  8; 
United  States  an  example  of,  102, 
The  American :  maintained  by  the 
Constitution,  103,  200;  a  century's 
changes  in,  191, 199, 200, 218 ;  inter- 
dependence of  nation  and  states  in, 
109,  211 ;  permanence  of,  218-220. 

Federalists,  the :  efforts  to  ratify  Con- 
stitution, 100 ;  later  organization  of, 
125,  128, 439,  440. 

Federalist,  the,  loi. 

Feudal  State,  a,  7. 

Filibustering,  230,  237. 

Finance:  national;  under  Confeder- 
ation, 82-83;  methods  of  Con- 
gress, 258-261;    reform  of  same, 


Index 


593 


261-263 ;  sources  of  revenue,  474- 
477 ;  state,  354,  382 ;  school,  374 ; 
city,  methods,  408,  409,  434;  data, 
416-417. 

Fire  departments,  the  city,  410-41 1. 

F'ish  Commission,  national,  313. 

Fish,  Hamilton,  517. 

Florida :  acquisition  of,  273 ;  govern- 
ment in,  346. 

Food,  inspection  of,  413. 

Foreigners:  immigration  of,  146;  in 
our  cities,  404. 

France :  Constitutions  of,  5,  13 ; 
Senate  of,  232. 

Franchise,  the.    See  Suffrage. 

Franchises,  municipal,  412,  413,  415. 

Franklin,  Benjamin,  63,  76,  93,  515. 

Freedmen's  Bureau,  171. 

"  Free-silver,"  443. 

"  Free-trade,"  443, 498,  500. 

Fugitive  slave  act :  of  1793,  159 ;  of 
1850,  161,  164. 

Gadsden  purchase,  273. 

Gallatin,  Albert,  137. 

Garfield,  James  A.  (President),  442, 
443.  518. 

Gas  supply  of  cities,  414. 

General  property  tax,  the,  382,  416, 
478-480. 

Geneva  award,  the,  517. 

Geojge,  III,  40,  69-77,  293. 

Georgia:  colony  of,  55,  74;  state  of, 
loi,  120,  144,  149,  172,  188,  225; 
government  in,  376,  394,  433. 

Germany,  Bundesrath  of,  233. 

Gerrymandering,  249. 

Government:  the  departments  of, 
13;  the  forms  of,  15-17;  theories 
concerning  the  office  of,  18 ;  con- 
stituent functions  of,  19;  minis- 
trant  functions  of,  19,  382,  406; 
limits  of  action  of,  20;  relation  of 
departments  of,  to  each  other,  327- 

332- 
Governor,  colonial :    powers  of,  55 ; 

contests    of,   with   assemblies,  57. 
Governor,   state:    position  in  early 

times,  80,  291 ;  present  powers  of, 

357;    qualifications   and    election 

o».  359- 
Grant,  Ulysses  S.   (President),   173, 
189,  422,  448. 
2Q 


Great  Britain.    See  England. 

Greenback  party,  444. 

Greenback  party.    See  Notes,  U.  S. 

Habeas  Corpus,  writ  of:  in  Magna 
Charta,  34;  in  1600,  37;  law  of 
i^9>  38;  suspension  of,  general, 
110,  211,  459;  during  Civil  War, 
169.  173.  340- 

Hadley,  Arthiu:  T.,  quoted,  504. 

Hale,  Edward  E.,  reference  to,  530. 

Hamilton,  Alexander:  before  1789, 
91,  93,  100,  102,  317;  as  Secretary 
of  the  Treasury,  119, 121,  123,  489; 
as  party  leader,  124,  439. 

Hanoverian  kings,  40-41, 58, 71  etseg. 

Harrison, Benjamin  (President), 30^, 

443- 

Hartford  Convention,  the,  130. 

Hawaii:  annexation  of,  190,  273; 
government  of,  522. 

Hayes,  Rutherford  B.  (President), 
442,  490,  518. 

Health  officer,  city,  413. 

Henry,  Patrick,  72,  93,  loi. 

Hinsdale,  Burke  A.,  quoted,  229. 

Homestead  Act,  308. 

Homestead  exemption  laws,  151, 466. 

Hospitals,  public,  398. 

House  of  Representatives  (national) : 
proposed  representation  in,  96; 
composition  of,  97,  245-246 ;  pow- 
ers of,  in  outline,  106;  first  or- 
ganization of  (1789),  119;  special 
powers  of,  258-263.  See  Topical 
Analysis,  chap.  XH. 

Houses  of  Representatives,  state: 
composition  of,  351 ;  special  pow- 
ers of,  355. 

Howard,  George  E.,  reference  to,  393. 

Idaho,  government  in,  427, 467. 

Illinois:  state  of,  136;  proportional 
representation  in,  249,  431 ;  local 
government  in,  393. 

Immigration,  foreign:  influence  of, 
146;  restrictions  upon,  311. 

Impeachment:  of  President  John- 
son, 173;  process  of,  238;  useless- 
ness  of,  334 ;  method  in  states,  359. 

Implied  powers :  Hamilton  up>on, 
123;  Supreme  Court  upon,  139, 
281. 


5^ 


Index 


Inauguration,  the  presidential,  291, 
Income  taxes,  476-477. 
Independence,  the   Declaration  of, 

76-78. 
Indian  policy  of  the  United  States, 

309. 
Indiana,  state  of,  136;   government 

in.  357- 
Individualist  theory  of  government, 

18. 
Industrial     Commission,    National, 

I8S.  313. 
Industry :    before   Civil  War,    181 ; 

after  Civil  War,  181-183. 
Inheritance  laws,  61 ;  interstate  rules 

regarding,  370. 
Inheritance  taxes,  477,  478, 
Initiative,  the,  187,  433-435. 
Insane,  care  of,  396, 
Interior,  department  of,  307-310. 
Internal     improvements,    137,    277, 

278. 503. 
International  law,  23. 
Interstate  Commerce  Act,  183,  504. 
Interstate   Commerce    Commission, 

183,  278,  313,  505. 
Iowa,  government  in,  348. 
Iredell,  Justice,  120. 
Italy,  dispute  with  (1891),  203. 

Jackson,  Andrew  (President),  130, 
143.  144,  145,  263,  340,  440. 

Jails,  local,  380. 

Jay,  John,  100,  124,  515. 

Jay's  treaty,  124. 

Jefferson,  Thomas  (President)  : 
before  1800,  76,  86,  93,  123-125, 
159.  439;  ^s  President,  127-129, 
262,  340,  440. 

John,  King,  34. 

Johnson,  Andrew  (President),  171- 

173.  239- 
Judges,  national,  109,  320. 
Judges,  state,  149,  361. 
Judicial  department,  functions  of,  18. 
Judicial  interpretation,  rules  of,  319. 
Judiciary  act :  of  1789,  120,  319;  of 

1801,339;  of  1891,320. 
Judiciary,  English,  36. 
Judiciary,  municipal,  411. 
Judiciary,  state:   early,  80;  creation 

of  an  elective,   149;    relation    to 

national  courts,  207,  322;    scope 


of  work  of,  360 ;  system  of  courts 
of,  360;  judges  of,  361. 

Judiciary,  United  States:  proposed 
imperfect  jurisdiction  of,  98;  or- 
ganization of,  108;  outline  of 
powers  of,  109;  first  organization 
of  (1789),  i2o;  important  decisions 
of,  120.  121,  138,  139,  144,  163,  175, 
281,  319,  339,  491 ;  and  other  de- 
partments, 321, 338-340.  See  Topi- 
cal Analysis  chap.  XVI. 

Jury:  trial  by,  34,  460,  464,  466; 
merits  and  demerits  of,  467. 

Justices  of  the  peace :  historical,  37, 
48,  149;  at  present,  360,  361,  394. 

Kansas:  territory  of,  162;  govern- 
ment in,  426. 

Kansas-Nebraska  Bill,  the,  162. 

Kentucky:  state  of,  86;  resolutions 
of,  126,  127,  318. 

King's  Council,  33. 

King,  English:  contest  with  people, 
34.  35.  36.  39;  contests  with  colo- 
nies, 54,  58,  69-77. 

"  Know-nothing  "  party,  280,  442. 

"  Ku  Klux  Klan,"  the,  176. 

Labor  :  national  department  of,  312 ; 
state  bureaus  of,  511;  legislation 
regarding,  151,  509-511. 

Land  policy  of  United  States,  308. 

Land  cessions  of  the  states,  84,  272. 

Law :  growth  of,  21 ;  relation  to  lib- 
erty, 21,  23;  relation  to  govern- 
ment, 22;  kinds  of,  23. 

Legal  Tender  Cases,  175,  281. 

Legislature :  the  proper  functions  of, 
17 ;  the  colonial,  55-58. 

Legislature,  the  state:  powers  of 
(1776),  80,  (1901).  354,  386;  re- 
strictions upon,  148,  186,  352-354, 
389;  sessions  of,  351;  method  of 
legislation  in,  352,  354 ;  defects  of, 
355-356 ;  power  of,  in  city  affairs, 
405,  406. 

Libel,  law  of,  459,  463. 

Liberty,  civil,  political,  religious,  and 
industrial :  in  general,  23 ;  in  Eng- 
land (1600),  37-38;  in  the  colo- 
nies, 59-62;  increase  of,  151;  at 
present,  see  Topical  Analysis,  chap. 
XXIV.    See  also  Suffrage. 


Index 


595 


Licenses,  conditions  of  granting,  376- 

377- 
Lieutenant-governor  of  the  states,  359. 
Lincoln,  Abraham  (President),  164, 

169,  171,  234,  292,  340,  530. 
Liquor  problem,  the,  375-378. 
Local  government:   in  England,  31, 

32, 33,  36 ;  types  of,  in  America,  45, 

390.     See  Topical  Analysis,  chap. 

XX ;  also  Town ;  County ;  and  City. 
Locke,  John,  47,  56. 
Lodging-houses,  city,  399,  415. 
"  Log-rolling,"  230. 
Lords  of  Trade,  55,  56,  58,  318. 
Lords,  House  of,  35,  36,  23a. 
Louisiana:  constitution  of,  188,  289, 

346.  349,  426 ;  parish  of,  394. 
Louisiana  purchase,  the :  127,  273 ; 

constitutionality  of,  128;  influence 

of,  128-130;  slavery  in,  138,  160, 

162,  163. 
Lynchings,  381. 

Machine,  the  political:  develop- 
ment of,  142;  character  of,  446, 
447 ;  work  of,  447,  449,  450,  452. 

McConachie's  Congressional  Com- 
mittees, quoted,  252. 

McCulloch  V.  Maryland,  139. 

Madison,  James  (President),  86,  9a, 
93,  94,  100,  loi,  102, 137, 

Magna  Charta,  granted,  34. 

Maine:  admission  of,  138;  govern- 
ment in,  358,  425. 

Maine,  destruction  of  the,  190. 

McKinley,  William  (President),  296, 
297.  443.  444.  SOI.  518. 

Mar  bury  v.  Madison,  121,  319. 

Marriage  laws,  diversities  in,  367. 

Marshall,  John,  C.  y.,  loi,  120, 121, 

139.  144.  340- 

Maryland :  colony  of,  47,  57 ;  refuses 
to  ratify  Articles  of  Confederation, 
81,  84;  as  state,  loi,  140;  govern- 
ment in,  348. 

Massachusetts :  colony  of,  49,  50,  51, 
56.  57. 63, 72.  73. 74. 78 ;  state  of,  79, 
87,  140,  347;  ratifies  Constitution, 
loi  ;  present  government  in,  348, 
358.  374.  425.  428. 

Maximilian,  Emperor,  518. 

Mayors  :  former  position  of,  153, 405 ; 
two  kinds  of,  408-409. 


Measures,  standards  of,  279. 
Mechlenburg  Resolutions,  76. 
Message :  the  presidential,  297,  335; 
the  gubernatorial,  357 ;  the  special, 

297.  335- 

Mexico :  war  with,  i6o ;  land  cession 
by,  161,273;  Maximilian  in,  518. 

Michigan  :  financial  experiments  of, 
150;  government  in,  348,  462. 

Militia:  organization  of,  271 ;  use  of, 
184.  293. 

Milltgan  Case,  the,  169. 

Minnesota,  government  in,  406,  407, 
467. 

Mississippi:  state  of,  172;  govern- 
ment in,  187,  346,  425. 

Missouri :  admission  of,  137-138 ;  city 
charters  in,  406,  407. 

Missouri  Compromises :  137, 138 ;  re- 
peal of,  162 ;  Supreme  Court  on, 163. 

Monarchies,  7,  15. 

Money.  See  Coins;  Currency;  and 
Paper  money ;  also  Topical  Analy- 
sis, chap.  XXVL 

Monometallism  :  meaning  of,  488 ; 
in  the  United  States,  490,  492. 

Monroe,    James    (President),    139, 

143- 
Monroe  Doctrine :   original  aim  of, 

139 ;  history  of,  518-519. 
Montana,  government  in,  467. 
Montesquieu's  Esprit  de  Lois,  13. 
Montford,  Simon  de,  34. 
Morris,  Gouvemeur,  93. 
Moses,  Professor,  reference  to,  529. 
"  Most  favored  nation  "  clauses,  277. 

Napoleon  1, 124, 128. 

Napoleon  IH,  518. 

Nation,  definition  of  a,  3. 

Nation  State,  definition  of  a,  7. 

National  committees  of  political  par- 
ties, 445-446. 

National  Conventions:  organization 
of,  447 ;  work  of,  287,  448. 

Nationality  :  what  comprises,  3,  115; 
development  of,  in  modem  times, 
27;  in  America  (1760),  70;  contest 
of,  with  particularism,  80,84,95-96, 
I00-I02,  117,  118,  145,  198-199; 
three  periods  of  development  of, 
116;  increase  of,  after  i8io,  129, 
135-137. 139. 145-147. 168, 181, 199 ; 


596 


Index 


coHiult     also     Topical    Anal3rsis, 

chaps.  VI-IX. 
Naturalization:    history  of  laws  of, 

279;   two  kinds  of,  280;    process 

of  individual,  218. 
Natural  theory  of  the  State,  5;  ex- 
hibited in  American  history,  6. 
Navigation    acts:     British,    60,    71; 

compromise    over  American,   98, 

276. 
Navy:   need  of  a,  271;    department 

of  the,  311. 
Nebraska,  government  in,  234,  393, 

433- 

Neutrality,  Proclamation  of,  124,  520. 

Nevada,  government  in,  467. 

New  England  Confederation,  the,  62. 

New  Hampshire,  state  of,  78,  86,  loi. 

New  Jersey :  state  of,  loi ;  govern- 
ment in,  357. 

New  Jersey  plan :  provisions  of,  95 ; 
rejection  of,  96. 

New  York:  colony  of,  63,  73;  state 
of,  81,  83,  92,  140,  503;  ratified 
Constitution,  loi;  government  in, 

345.  348.  373.  392. 

Nominations :  presidential,  287,  448 ; 
state  and  local,  449;  importance 
of,  452;  direct,  453. 

North  Carolina :  state  of,  102,  105 ; 
government  in,  188, 357,  359,  426. 

Notes,  United  States,  175,  270,  491. 

Nullification :  threatened  in  Ken- 
tucky, 127 ;  used  in  Georgia,  144 ; 
by  South  Carolina,  144-145. 

Office-holders,  qualifications  of, 
428. 

Ohio:  state  of,  136,  149;  govern- 
ment in,  348,  376. 

Olney,  Richard,  519. 

Ordinance  of  1787,  the,  85,  159,  273. 

Ordinary,  the,  in  Georgia,  394. 

Oregon  territory,  161,  273. 

Osgood,  Professor,  reference  to,  53. 

Otis,  James,  71. 

Paine,  Thomas,  76, 91. 
Paper  money,  83,  175,  270,  491-492. 
Pardon,  executive  power  of,  299,  357. 
Paris,  the  Declaration  of,  520. 
Parish  government :  in  England,  34, 
37 ;  in  Virginia,  47. 


Parliament:  beginnings  of,  34,  35, 
225;  powers  of,  36,  40,  41;  and 
the  colonies,  59,  70. 

Parliamentary  government.  See  Cabi- 
net government. 

Particularism.    See  Nationality. 

Party,  the  political,  in  the  United 
States.  See  Topical  Analysis, 
chap.  XXIII;  also  under  names 
of  parties. 

Patents,  process  of  obtaining,  309. 

Penal  codes,  464. 

Pendleton  Act,  189,  296. 

Penitentiaries,  380. 

Pennsylvania:  colony  of,  52,  55,  56, 
60;  state  of,  loi,  225. 

Pension  policy  of  the  United  States, 
308. 

People's  party,  443,  444. 

Philippines:  cession  of,  190,  273; 
rebellion  in,  190;  government  o^ 
522. 

Piracy,  punishment  of,  28a 

Plutarch,  story  from,  525. 

"  Pocket  veto,"  the,  231. 

Police  department,  city,  410-41 1. 

Political  societies,  characteristics  o^ 
I,  2. 

Porto  Rico :  cession  of,  190,  273 ; 
government  in,  522. 

Post-ofiice  department,  306-307. 

President,  the :  nomination  and  elec- 
tion of,  99,  262,  286-290,  447-449; 
powers  of,  in  outline,  108 ;  changes 
in  power  of,  143,  284;  military 
power  of,  169,  292,  293,  335;  and 
Congress,  171-173,  191,  270,  296- 
299,  332-338 ;  and  the  Senate,  237- 
339,  294,  298,  334 ;  and  the  courts, 
169,  340.  See  also  Topical  Analy- 
sis, chap.  XIV. 

Presidential  government:  character 
of,  16,  330 ;  advantages  of,  331. 

Previous  question,  the:  lack  of,  in 
the  Senate,  237 ;  in  the  House,  251. 

Primary,  the :  character  of,  450 ;  and 
the  machine,  447,  450;  reform  of, 
450-451;  problem  of,  451. 

Prisons,  method  of  state,  379. 

Private  law,  23,  208. 

Privy  Council:  before  1600,  33; 
orders  fi-om,  36,  58. 

Probate,  courts  of,  360. 


Index 


597 


Prohibition :  state,  377 ;  party,  444. 
Proportional  representation,  249, 430- 

432. 
"  Protection,"  499-502. 
Public  administrators,  of  the  county, 

396. 
Public  domain :  creation  of,  84 ;   en- 
largement of,  273 ;  government  of, 

85,  274,  520-523. 
Public  law,  kinds  of,  23. 
Public  safety,  (city)  department  of, 

410. 
Public  works:    state  superintendent 

of,  358 ;  (city)  department  of,  40. 
Puritans,   institutions  and  ideas  of, 

48-49. 

Quakers,  ideas  and  institutions  of, 
52-53- 

Railways  :  value  of,  to  nationality, 
147 ;  increase  of,  182,  503 ;  control 
of,  183,  504,  506  ;  state  commis- 
sions of,  183,  505-506;  national 
commissioner  of,  310;  city  owner- 
ship of,  415. 

Randolph,  Edmund,  94. 

"  Reciprocity,"  277,  501,  502. 

Reconstruction:  problem  of,  170; 
theories  concerning,  170;  means 
finally  used  in,  172. 

Recorders,  county,  396. 

Referendum,  the,  187, 418, 432-435. 

Reform  acts  of  1832,  1868  and  1884 
(English),  41. 

Reformatories,  380. 

Religious  liberty,  38,  86,  459,  462. 

Religious  organizations,  national, 
formed,  85. 

Removals  from  office:  historical, 
173.  295 ;  a*  present,  295,  357,  409. 

Representation,  32,  72,  247-248. 

Republican  party,  the,  162,  441-444. 

Residuary  powers,  204. 

Revenue.  See  Finance  and  Taxa- 
tion. 

Revolution  as  a  process  of  gro\vth, 

25- 
Revolution,  in  England  (1688),  39. 
Revolution,   the  American:    causes 

of  68-75 ;  progress  of  war  during, 

7^-77;   effects  of,  69,  77-81,  515- 

516. 


Revolution,  the  French  (1789),  27, 

124. 
Rhode  Island:    colony  of,  51,  56; 

state  of,  79,  83,  93,  102,  105,  289; 

government  of,  357,  426. 
"  Rider,"  the,  298,  333. 
River  and  Harbor  improvement,  279. 
Roads,  care  of,  399. 
Rousseau,  J.  J.,  5. 
Rules,  Committee  on,  251-253, 264. 

Salaries  :  of  congressmen,  228 ;  of 
the  President,  286;  of  national 
judges,  320 ;  of  state  officials,  see 
Appendix  G. 

San  Francisco,  433. 

Schools,  public,  371-375.  See  also 
Education. 

Secession:  forbidden  in  North-west 
territory,  85;  threatened  in  New 
England,  137;  actual  secession  in 
the  South,  164 ;  failure  of  southern, 
168 ;  improbability  of  future,  191, 
201. 

Sedition  Act  (1798),  126. 

Selectmen,  the  New  England,  51, 392. 

Senate,  the  national :  disputes  over 
com^josition  (1787),  96;  organi- 
zation and  special  powers  of,  in 
outline,  106 ;  early  methods  of,  120 ; 
and  the  House  of  Representatives, 
240-241,  263;  and  the  President, 
see  President.  See  also  Topical 
Analysis,  chap.  XI. 

Senates,  the  state:  composition  of, 
350;  special  powers  of,  355. 

Senators :  proposed  method  of  elec- 
tion of  (1787),  98 ;  election  of,  233- 

235.  356. 
"  Senatorial  courtesy,"  237,  294. 
Sewage,  disposal  of,  413. 
Seward,  William  H.,  516,  518. 
Shay's  rebellion,  87. 
Sheriff,  37,  48 ;  county,  395. 
Sherman,  Roger,  76,  93. 
Sherman  Silver  Act,  35, 186, 490. 
Shire.    See  County. 
Silver,  laws  relating  to,  186, 486-490. 
Silver  Republican  party,  444. 
"  Slate,"  use  of  a,  449, 45a 
Slaughter   House  Cases:    175,  216; 

significance    of  decision  in,  214- 

215- 


598 


Index 


Slave  trade,  98. 

Slavery:  general  history  of,  25;  in 
the  colonies,  62 ;  in  the  convention, 
97,  98,  158;  as  an  issue  in  state 
admission,  137 ;  in  Missouri,  137- 
138,  i6o;  development  of,  in  the 
South,  158 ;  in  the  territories,  before 
1845,  159;  after  1845,  161-164; 
abolition  of,  169, 174. 

Social  Democratic  party,  444. 

Socialist  Labor  party,  444. 

Socialistic  theory  of  government, 18. 

South  Dakota,  initiative  in,  433. 

Sovereignty:  determines  kinds  of 
States,  7;  characteristics  of,  9; 
classes  of  powers  of,  10 ;  disputes 
over  location  of,  in  United  States, 

10,  104-105,  145,  164,  191 ;  in  Arti- 
cles of  Confederation,  81. 

South  Carolina:  colony  of,  47,  56; 
state  of,  101,  165;  nullifies  tariff, 
144, 500 ;  secedes,  164 ;  government 
of,  187,  289,  346,  367,  376,  426. 

Spanish  American  War,  the,  190. 

Speaker  of  the  House  of  Representa- 
tives, 253-254. 

Special  assessments,  481. 

Special  legislation,  forbiddSn,  148, 
186,  353,  389. 

"  Spoils  system  " :  introduced,  143, 
152 ;  development  of,  295. 

Staatenbund,  a,  8,  165. 

Stamp  Act,  the,  71. 

Stamp  Act  Congress,  the,  72. 

State :  definition  of  a,  2 ;  two  uses  of 
the  term,  2 ;  distinguished  from  na- 
tion, 3;  three  theories  concerning 
origin  of,  4-5 ;  as  an  organism,  6, 

11,  14 ;  kinds  and  forms  of  the,  7 ; 
characteristics  of  a  modern,  9;  re- 
lation of  its  government  to  a,  14, 
24 ;  mortality  of,  26. 

State,  department  of:  under  the  Con- 
federation, 118 ;  reorganized  in 
1789,  119;  present  duties  0^304- 
306 ;  commonwealth  secretaries  of, 
358. 

States  (commonwealths)  :  sphere  of 
activity  of,  208-209,  366-383;  re- 
strictions upon,  under  Confedera- 
tion, 81,  in  national  Constitution, 
109,  210 ;  relation  of,  to  nation,  344 ; 
uniformities  and  diversities  among, 


345.  366-371 ;  constitutions  of,  346- 
350 ;  central  governments  of,  350- 
361 ;  local  government  of,  386-400, 

States:  admission  of  new,  85,  313; 
limitations  upon,  275;  congres- 
sional interference  with,  275. 

State  sovereignty,  81,  163,  164,  165, 
191. 

Stevens,  Thaddeus,  170. 

Stimson,  F.  J.,  reference  to,  345. 

Streets,  care  of  city,  412. 

Strikes :  presidential  interference 
with,  184,  293;  prevention  and 
control  of,  185,  511. 

Stuart  kings  and  English  people,  39- 
40. 

Subsidies,  to  develop  commerce,  277, 
278,  503- 

Succession,  presidential,  290. 

Suffrage:  in  England  (1600),  37,  38; 
in  colonial  times,  50,  52, 59 ;  move- 
ment toward  universal,  86, 130, 140, 
187,  194,  423-424;  recent  restric- 
tions of,  in  South,  187,  425-426;  as 
a  means  of  municipal  reform,  417; 
present  requirements  for,  425 ;  spe- 
cial tests  for,  187, 425 ;  woman,  188, 
426. 

Sumner,  Charles,  170. 

Supervisors,  boards  of,  52,  392. 

Supreme  Court,  the.  See  Judiciary, 
U.S. 

Surveyors,  state,  358. 

Taney,  Roger,  B.,  C.  J.,  163,  340. 

Tariffs :  under  Confederation,  83, 84 ; 
early  national,  121,  500 ;  from  1816 
to  i860,  144,  500;  since  i860,  185, 
501-502;  campaigns  on  the,  442- 

443- 

Taxation:  internal,  in  colonies,  70- 
74;  under  Confederation,  83;  un- 
der Federalist  rule,  121-122 ;  during 
Civil  War,  182;  general  history  of 
national,  474,  476;  general  power 
of,  under  Constitution,  207,  268; 
under  state  constitutions,  463.  See 
also  Topical  Analysis,  chap.  XXV. 

Teachers,  preparation  and  selection 

of,  374. 
Tennessee,  state  of,  172. 
Tenure  of  Office  Act,  the,  173,  295. 
Territorial,  growth,  128, 161, 190, 273. 


Index 


599 


Territories :  congressional  control 
over,  272-274,  521;  presidential 
control  over,  299,  336,  521-522; 
government  of  organized,  274, 521 ; 
government  of  unorganized,  274, 
520-523. 

Texas :  annexation  of,  160, 273 ;  state 
of,  172. 

Texas  v.  White,  175. 

"  Tliird  term  tradition,"  285. 

Tocqueville,  Alexis  de,  reference  to, 
390. 

Town  government:  in  Saxon  Eng- 
land, 32;  in  colonies,  45,  51,  52; 
in  the  west,  151 ;  at  present,  391- 

393- 

Town  meeting,  51,  391. 

Townshend  Acts,  72. 

Township.     See  Town. 

Treason,  punishment  of,  280,  460. 

Treasurers :  state,  358 ;  county,  396. 

Treasury,  department  of :  under 
Confederation,  119;  reorganized 
(1789),  119;  bureaus  of,  310. 

Treasury,  Secretary  of :  report  of,  to 
Congress,  260 ;  powers  of,  269,  333. 

Treaties,  the  making  of,  237,  298, 334. 

Treaty,  the :  of  1783,  515 ;  with  Prus- 
sia (1785),  520;  with  England 
(1794),  124;  Clayton-Bulwer,  517; 
of  Washington,  517;  with  Spain 
(1898).  190. 

Trent  affair,  the,  516. 

Trevett  v.  Weeden,  318. 

Trustees,  school,  373,  392. 

Trusts.    See  Corporations. 

Tudor  kings,  government  under, 
35-39- 

Unconstitutional  legislation, 

55. 317-319- 

Unwritten  constitution :  what  con- 
stitutes, 11;  of  the  United  States, 
12,  192,  193. 

Utah,  government  in,  427,  467. 

Venezuela  dispute,  the,  519. 
Vermont,  state  of,  86;   government 

in.  355.  357.  358. 

Vestries:  in  England,  37;  in  Vir- 
ginia, 47. 

Veto,  the:  in  the  colonies,  55,  56; 
lack  of,  in  first  state  constitutions, 


80;  in  the  Virginia  plan,  94;  of 
the  president,  231,  297,  333;  of 
the  state  governors,  298,  354,  357 ; 
of  city  mayors,  408. 

Vice-president,  the :  qualifications 
and  powers  of,  235,  290;  election 
of,  239,  287-290. 

Villages,  incorporated,  government 
of,  396. 

Virginia  plan :  resolutions  of,  94 ;  ac- 
ceptance of,  by  committee  of  the 
whole,  96 ;  changes  in,  98. 

Virginia :  colony  of,  46-48, 54, 57, 59, 
62,  72;  state  of,  79,  81,  172,  275; 
ratifies  Constitution,  loi ;  resolu- 
tions of  (1798),  126;  government 
in.  345.  348.  394- 

War,  department  of :  under  Con- 
federation, 119;  reorganized,  119; 
at  present,  311. 

Washington,  George  (President),  94, 
118,  124,  292,  321. 

Washington  (city),  government  of, 
274. 

Washington  (state),  government  in, 
407,  467. 

Water  works,  city  ownership  of,  414. 

Ways  and  Means,  Committee  on,  258, 

259.  478. 
Webster-Hayne  debate,  145. 
Weights,  standards  of,  270. 
West  Point  Military  Academy,  311. 
West  Virginia,  creation  of,  275. 
Western  land  cessions,  84,  272. 
Whig  party,  the,  141,  162,  441. 
Whitten,  Robert  H.,  quoted,  509. 
William  of  Normandy,  32. 
William  III,  40,  51. 
Wilson,  James,  93,  loi. 
Wilson,  Woodrow,  The  State,  quoted, 

19-20,  209,  370. 
Witenagemote,  32. 
Woman  suffrage,  188,  426. 
Worcester  v.  Georgia,  144. 
World  State,  the,  7. 
Writs  of  assistance,  71. 
Wyoming,  government  in,  289,  425, 

427. 

X.  Y.Z.  Mission,  124. 
Yeardley,  Governor,  47. 


THE   FOUNDATIONS   OF   AMERICAN 
FOREIGN   POLICY 

VITH   A   WORKING   BBLIOGRAPHY 

By  ALBERT  BUSHNELL  HART 

Professor  of  History,  Harvard  University ;  author  of  ^^  American 
History  told  by  Contemporaries^^  etc. 

Cloth.    i2ino.    $1.50,  net 

"  A  very  good  introduction  to  the  whole  subject.  There  are  seven  chapters,  comprising  as 
many  diplomatic  phases :  The  United  States  as  a  World  Power,  The  Experience  of  the  United 
States  in  Foreign  Military  Expeditions,  Boundary  Controversies,  A  Century  of  Cuban  Diplo- 
macy, Colonies,  What  the  Founders  of  the  Union  thought  concerning  Territorial  Problems, 
and  The  Monroe  Doctrine.  To  these  is  added  a  working  bibliography  of  American  diplomacy, 
sure  to  be  helpful  to  those  who  wish  to  pursue  the  subject  systematically." 

—  St.  Louis  Post-Dispatch. 

"This  book  is  of  great  value  to  students  and  statesmen,  editors  and  politicians,  being  a 
complete  r6sum6  of  the  diplomacy  of  this  government  from  the  time  it  threw  off  the  yoke  and 
took  its  place  as  an  independent  nation.  Professor  Hart  is  a  very  clear,  concise,  and  interest- 
ing writer,  and  he  not  only  recapitulates  the  facts  of  history,  but  arranges  and  compares  them 
in  such  a  way  that  his  readers  can  easily  follow  the  trend  of  American  ideas." 

—  Nebraska  State  Journal. 

"  Lucidly  written,  and  the  conclusions  reached  are  indisputable.  .  .  .  The  book  may  be 
commended  to  'anti-imperialists'  for  their  instruction.  Yet  it  is  not  controversial  in  tone  or 
partisan  in  its  arguments ;  it  contains  simply  the  results  of  profound  historical  knowledge.  A 
bibliography  adds  greatly  to  its  value."  —  /^evidence  Journal. 


AMERICAN   DIPLOMATIC   QUESTIONS 

By  JOHN  B.  HENDERSON,  Jr. 

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of  his  country  the  attention  they  deserve,  nor,  indeed,  does  its  usefulness  stop  there.  It  will 
be  found  as  serviceable  in  Europe,  though  there,  naturally  enough,  its  use  will  be  restricted  to 
diplomatic  circles,  members  of  parliaments,  editorial  writers,  and  a  limited  number  of  students 
of  international  aflfairs,  whereas  with  us  it  is  a  book  for  all  the  people,  for  all  voters,  who  may 
be  called  upon  to  take  into  consideration  most  of  the  large  issues  here  involved,  which  are 
of  the  present  and  the  future,  as  well  as  of  the  past.  The  book  deals  with  the  fur  seals  and 
the  Behring  Sea  award ;  the  inter-oceanic  canal  problem ;  the  Samoan  question,  now  settled  to 
our  entire  satisfaction,  and,  therefore,  at  present,  at  least,  strictly  historic ;  the  Monroe  Doc- 
trine, with  special  reference  to  the  Venezuelan  boundary  dispute;  and  the  northeast  coast 
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—  The  Mail  and  Express  (New  York). 


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Government,  J  670- 1 7 19 

The  History  of  South  Carolina  under  the  Royal 
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The  History  of  South  Carolina  in  the  Revolution,  J  775- J  780 

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By  Edward  McCrady,  a  Member  of  the  Bar  of  Charleston,  S.C,  and  President  of  the 
Historical  Society  of  South  Carolina. 

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ECONOMIC  HISTORY  OF  VIRGINIA  IN  THE 
SEVENTEENTH  CENTURY 

An  Inquiry  into  the  Material  Condition  of  the  People,  based  upon 
Original  and  Contemporaneous  Records 

By  Philip  Alexander  Bruce,  author  of  "The  Plantation  Negro  as  a  Freeman,"  and 
Corresponding  Secretary  of  the  Virginia  Historical  Society.  In  two  volumes. 
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;J6.oo,  net. 

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MARYLAND   AS   A   PROPRIETARY  PROVINCE 

By  Newton  D.  Mereness,  Sometime  University  Fellow  in  History  in  Columbia  Uni- 
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Economic  History  of  Virginia  in  the 
Seventeenth  Century 

An  Inquity  into  the  Material  Condition  of  the  People,  based 
upon  Origfinal  and  Ojntemporaneoas  Records 

By  Philip  Alexander  Bruce,  author  of  "The  Plantation  Negro  as  a  Free- 
man," and  Corresponding  Secretary  of  the  Virginia  Historical  Society.  In 
two  volumes.  Crown  8vo,  Cloth,  gilt  tops.  Vol.  I,  pp.  xix  +  634.  Vol. 
II,  pp.  vi  +  647.     Price,  36.00  net. 

"  One  of  the  most  valuable  contributions  to  the  intimate  historical  knowledge  of  America. 
This  work  will  be  useful  for  all  time,  and  not  merely  to  the  lay  reader  who  wishes  to  know 
accurately  concerning  the  early  conditions  of  life  in  Virginia,  but  to  the  political  economist 
and  the  social  scientist,  who  are  laboring  to  advance  the  substantial  interests  of  the  world." 

—  Philadelphia  Evening  Telegraph. 

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that  will  be  accepted  as  final  wittiin  its  adopted  field.'  —  New  York  Evening  Sun. 

The  American  Commonwealth 

By  James  Bryce,  author  of  "The  Holy  Roman  Empire,"  M.P.  for  Aberdeen. 
In  two  volumes.  Third  edition,  completely  revised  throughout,  with  addi- 
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The  two  volumes  in  a  box,  $4.00  net. 

"  It  is  not  too  much  to  call  '  The  American  Commonwealth '  one  of  the  most  distinguished 
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ment."—/"A/'/a^^Z/AiVi  Evening  Telegraph. 

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—  Literary  tVorld. 

The  Peace  Conference  at  The  Hague 

and  its  Bearingfs  on  International  Law  and  Policy 

By  Frederick  W.  Holls,  D.C.L.,  a  Member  of  the  Conference  from  the 
United  States  of  America.     8vo.     Cloth.     {$3.00. 

The  London  Times  says:  "  No  one  was  better  qualified  than  Mr.  F.  W.  Holls  to  be  the 
historian  of  the  Peace  Conference  at  The  Hague.  He  has  many  qualifications  for  the  task, 
being  known  in  the  United  States  as  a  confidential  adviser  of  Mr  McKinley  in  regard  to  deli- 
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Among  the  few  defects  in  his  history  of  the  Peace  Conference  at  The  Hague  is  the  fact  that  it 
does  not  make  the  reader  understand  the  large  part  which  he  himself  took  in  the  proceedings. 
.  .  .  But  every  one  ought  to  be  erateful  for  the  clear  statement  of  the  course  of  the  discussioa 
and  the  effect  of  the  conclusions. 


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S    001032  316    0 


